COURT FILE NO.: 59/18

DATE: 2019 05 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

H.R.

Appellant/Applicant

Lorna Muller, for the Crown

Marianne Salih, for the Appellant/Applicant

HEARD: May 10 and 15, 2019

ENDORSEMENT – Application for Bail Pending Appeal

conlan j.

I. Introduction

The Nature of the Proceeding

[1] After a trial in the Ontario Court of Justice, H.R. was convicted of one count of sexual assault under section 271 of the Criminal Code.

[2] H.R. is appealing the conviction. He brings this application for bail pending appeal. The Crown opposes the application.

The Law

[3] The applicable law is not in dispute. Borrowing from the recent decision of Justice Paciocco of the Court of Appeal for Ontario in R. v. Ruthowsky, 2018 ONCA 552, at paragraphs 3 and 4, (i) having been convicted, H.R. is no longer presumed to be innocent, (ii) to succeed on the within application, the burden is on H.R. to establish that he should be granted bail pending his appeal, and (iii) the test is for H.R. to demonstrate on a balance of probabilities that (a) his appeal is not frivolous, and (b) he will surrender himself into custody in accordance with the terms of any release order, and (c) his detention is not necessary in the public interest.

[4] Again with reference to Ruthowsky, supra, the consideration on the third element of the test is whether H.R. poses a risk to the safety of the community. Looking at the seriousness of the offence for which he has been convicted, and its circumstances, and assessing as well the relative strength of the grounds of appeal being advanced, would a reasonable member of the public conclude that H.R.’s detention in custody pending appeal is not necessary in the public interest? Put another way, would a reasonable member of the public conclude that the interest in the immediate enforcement of H.R.’s sentence outweighs the interest in releasing him pending the appeal?

[5] In Ruthowsky, supra, the Court dismissed the application for bail pending appeal. Mr. Ruthowsky had been sentenced to thirteen (13) years in prison, less six months’ credit for time served, on convictions for bribery, attempt to obstruct justice, criminal breach of trust, and trafficking cocaine.

[6] The Court held that Mr. Ruthowsky’s grounds of appeal crossed the “very low bar” set by the first condition, that is that they were not frivolous. At the same time, they were not seen as strong either. They did not “clearly surpass” the “not frivolous” threshold (paragraphs 4 and 5).

[7] The offences for which Mr. Ruthowsky was convicted were characterized by the Court as serious in that they were committed in “extremely aggravated circumstances” (paragraph 4).

II. Analysis

[8] For the reasons that follow, the application is granted.

[9] In my view, this application falls squarely within the following words from the Supreme Court of Canada in R. v. Oland, 2017 SCC 17, [2017] S.C.J. No. 17, at paragraph 51: “where public safety and flight concerns are negligible, and where the grounds of appeal clearly surpass the ‘not frivolous’ criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences”.

[10] This is not a murder case. This is not a case where the applicant for bail pending appeal has been convicted of multiple offences, all very serious, like Mr. Ruthowsky, for example.

[11] Sexual assault is a serious crime, however, and the circumstances here cannot be minimized. H.R., then engaged in Chinese medicine which included acupuncture, was found to have committed a breach of trust in sexually assaulting an adult female client during a therapy session. He massaged her bare breasts and nipples and vaginal area. He was sentenced to, among other things, five months in custody.

[12] I pause here to note that, barring his release pending appeal, H.R. will very likely serve the entire custodial sentence before his appeal is determined.

[13] Having recognized the seriousness of the offence, though, it is also true that H.R. has no criminal history of any kind besides the conviction that he is appealing. There is also no evidence to suggest that he has been or will be a risk to other clients, or to children, or to other members of the community at large. The general public safety concern is indeed negligible.

[14] Further, the flight concern is nil to negligible. The Crown, quite properly, does not rely upon it here. H.R. was on judicial interim release the entire time up to his sentencing in the lower Court, on May 9, 2019, without any difficulties. He presents a solid bail plan for his release pending appeal. He will reside with his long-time friend, S.C., and her children. S.C., a school teacher who presented very well in testifying on the within application, will be the surety. This is a tried and tested arrangement, as H.R. lived with S.C. and her two young daughters, with no issues of concern to the authorities, prior to his incarceration.

[15] I am satisfied on balance that H.R. will surrender himself into custody in accordance with any release order and, further, that his detention is not necessary in the public interest.

[16] One final comment on the public interest criterion. I disagree with the Crown that S.C. should be faulted for dismissing during her testimony any risk to her daughters at the hands of H.R. Such a risk is simply not founded on anything in the trial record, or the reasons for judgment, or the sentence that was imposed in the lower Court.

[17] That leaves a consideration of whether the applicant has established that his appeal is not a frivolous one. This is the main argument advanced by the Crown in opposition to the application.

[18] Again, this is a relatively low bar to cross. One way to frame the issue is to query whether the grounds of appeal being advanced are clearly arguable.

[19] There is no doubt that uneven scrutiny of the evidence, the main ground of appeal being advanced here, is a difficult argument to advance. H.R. “must point to something in the reasons or elsewhere in the record that make it clear the trial judge applied different standards in assessing the evidence of the appellant and the complainant”. R. v. Orton, 2019 ONCA 334, at paragraph 23, citing R. v. Howe, 2005 CanLII 253 (ON CA), at paragraph 59; and R. v. Bartholomew, 2019 ONCA 377, at paragraph 30.

[20] I am satisfied on balance that the applicant has established that his argument about uneven scrutiny of the evidence by the learned trial judge is not a frivolous one. It is not one that is patently without any merit. It may very well not succeed, but it is at least clearly arguable.

[21] Uneven scrutiny is not an invitation for the appellate court, or this Court on the within application, to essentially retry the case and assess credibility afresh. One must look at the reasons of the learned trial judge as a whole.

[22] There is no question that the lower Court delivered lengthy, detailed reasons. There is equally no question that the learned trial judge demonstrated no bias or anything short of an open mind throughout the reasons for judgment.

[23] That said, it is arguable that the learned trial judge approached the evidence of H.R. in a materially more exacting manner than that of the complainant (now victim, but I will still refer to her as the former below). One clear example will suffice.

[24] The learned trial judge was concerned about the complainant’s text to H.R. immediately after the session during which she was sexually assaulted. The learned trial judge was surely entitled to dismiss that concern, as was done. The pathway to that dismissal, however, was very short. The real concern is noted at paragraph 179 of the reasons for judgment. The complainant’s explanation for the text, from her testimony at trial, is outlined at paragraph 180. The learned trial judge accepted that explanation, and that was the end of the concern.

[25] In contrast, the big concern about H.R.’s evidence, and the crux of why his evidence was rejected by the learned trial judge, also had to do with the texts that he sent to the complainant.

[26] Here, the learned trial judge spends considerably more time in the reasons for judgment (paragraphs 207 through to 217). Virtually all of the evidence of H.R. on why he texted what he did, which evidence it is arguable was just as plausible as what the complainant said about the text that she had sent to H.R., was rejected by the learned trial judge. In fact, it was concluded that the texts that he had sent to the complainant, one in particular (see paragraph 214 of the reasons for judgment), were tantamount to a confession.

[27] It is not for this Court to weigh the strength of the uneven scrutiny argument beyond an assessment of whether it is clearly arguable, meaning that it is not frivolous. That low threshold has been met here, I am satisfied.

[28] In fact, within the words of the Supreme Court of Canada at paragraph 51 in Oland, supra, I am of the view that the said ground of appeal clearly surpasses the “not frivolous” standard in our case.

III. Conclusion

[29] For these reasons, H.R. shall be released on bail pending his appeal. It will be a Recognizance of Bail with S.C. as the residential surety. I decline the invitation of defence counsel to allow H.R. to live wherever approved of by the surety. He must reside with S.C. The amount of the pledge by the surety will be $5000.00. I will discuss with counsel the other terms of the release.

Conlan J.

Released: May 15, 2019