ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 18-127
DATE: 10/02/2019
BETWEEN:
Her Majesty the Queen
– and –
M.P.L.
L. Brock, for the Crown
D. Henderson, for the Accused
HEARD: September 16, 17, 18, 19, 20, 2019
The honourable r. john harper
endorsement
The Offences
[1] M.P.L. was convicted by me this morning in a lengthy judgment that I gave orally. He was convicted of ten counts that allege he did between June 2016 and September 15, 2017 sexually touch and assault V.L. who was approximately 8 and 9 years old at that time. The sexual touching and assaults included:
i. Touching her vagina for sexual purposes;
ii. Having her touch his penis;
iii. Performing oral sex on her;
iv. Having her perform oral sex on him;
v. Making her masturbate herself in in his presence;
vi. Masturbating in her presence and having her masturbate at the same time as he was masturbating;
vii. Attempting to have anal intercourse on her.
This Application by the Crown
[2] Upon his conviction, the Crown immediately bought an application pursuant to section 523(1) (a)(b) seeking an order that M.P.L. be immediately be taken into custody pending his sentence.
[3] The Crown submits that the grounds that they are relying on are the tertiary grounds. The Crown submits that given the findings in my decision finding him guilty it would hold the administration of justice in disrepute if M.P.L. is to remain free on bail pending his sentencing.
[4] The Crown relies on the case of R. v. B.T.Q., [2017] A.J. No.1255, a decision of the Alberta Court of Queen’s Bench by Justice W.A. Tilleman. In that case, the court was dealing with a person who was convicted of sexually assaulting three girls. Justice Tilleman reviews the state of the law with respect to post conviction bail revocations. He cited R. v. Green (2006) 2010 CCC (3d) 543, where Justice Ducharme referred to the tertiary reasons as follows, at para. 14:
The important question of public confidence in the administration of justice must be assessed from the perspective of a public what is both informed about our system of Bail and that facts of the particular case. This includes an appreciation of the fact that the offender, although convicted, has already been granted judicial interim release and has complied with the terms of that release, usually for a considerable length of time. It is difficult to understand how public confidence in the administration of justice will be undermined by the continued release of an offender who has demonstrated that he or she is not a threat to public safety and does not pose a risk of flight nor interference with the administration of justice.
[5] In Green and the line of cases that followed that case, especially in Ontario, the courts treated as a presumption that judicial interim release will remain in effect until sentencing unless case has been shown.
[6] Justice Tillman in R. v. B.T.Q. does not agree with this approach. In R. v. B.T.Q., Justice Tilleman of the Alberta Court of Queen’s Bench departed from the Green framework, rejecting the approach set out by Justice Ducharme. Here, Justice Tilleman disagreed with the reasoning of Green that a trial judge’s power to vary or revoke bail post conviction is found in section 523(2)(a).[^1] Instead, Justice Tilleman held that:
“[f]ollowing conviction, the proper section for the Crown's application to revoke bail is s. 523(1)(b), for two reasons. First, because the trial is over; and second, a considerable new circumstance exists: the accused is no longer presumed innocent. The "time window" described in s. 523(1)(b) is exactly and properly where the court finds itself.”
[7] Justice Tilleman relied on the 1998 Ontario Court of Appeal decision in R. v. Lenart, 1998 ONCA 1774, 158 D.L.R. (4th) 508, in reaching this conclusion. The Court in Lenart held that “[t]he trial judge has the authority to remand the appellant in custody pending sentence under section 523(1)(b)(ii) of the Criminal Code…” In applying section 523(1)(b), Justice Tilleman concluded that the Crown is not required to show cause. Instead, only the factors enumerated at section 515(10) should inform the trial judge’s decision to vary or revoke bail.
[8] This approach was applied to the circumstances of the offender in B.T.Q. The Court found that there was less motivation for the offender to attend court post-conviction. In order to protect the victim, whose testimony was responsible for the finding of guilt, Justice Tilleman held that bail should be revoked. The primary motivation in revoking the offender’s bail was the public’s confidence in the administration of justice.
[9] There are no Court of Appeal decisions on this issue.
[10] I agree with the approach of Justice Tillman in B.T.Q. In this case, however, I agree with both counsel for the defence and the Crown that M.P.L. is not a flight risk. The Crown is relying primarily on the tertiary grounds that are set out in the Criminal Code of Canada section 515(10) (c):
The detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances, including:
The apparent strength of the Crown’s case;
The gravity of the offence;
The circumstances surrounding the commission of the offence, including whether a firearm was used; and
The fact that the accused is liable, on conviction for a potentially lengthy term of imprisonment or, in case of an offence that involves, or whose subject-matter is a firearm. A minimum punishment of imprisonment for a term of there years or more.
[11] This was a strong case involving a very young child who trusted her step-father M.P.L. I found that she was groomed by M.P.L. This only child who was often bored was offered incentives, to bike ride, go to the park and beach and generally do fun things, that an 8 year old should be able to count on from an adult. Instead, he committed an egregious breach of trust with the sexual acts he perpetrated on her.
[12] Attaching a negative superlative to the sexual acts he did with this innocent child is difficult. The types of superlative such as heinous acts, despicable and deplorable acts, hardly captures the level of disgust our society must have when children, our most valuable asset, have their innocence, their sense of personal dignity and their vision of trust shattered at an early age from an adult seeking his or her own gratification.
[13] The Crown argues that it will be seeking a lengthy sentence under the circumstances of this case.
[14] Considering all of the factors in section 523 (1)(b) and section 515(10) of the Criminal Code of Canada, I hereby revoke M.P.L’s bail. He shall be immediately taken into custody pending sentencing.
Harper, J.
Released: October 2, 2019
R. v. M.P.L. 2019 ONSC 5913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
M.P.L.
ENDORSEMENT
The Honourable Mr. Justice R. J. Harper
Released: October 2, 2019
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