R. v. M.V.

COURT FILE NO.: 22-15855-00AP

DATE: 20220627

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. M.V.

BEFORE: Justice C. Boswell

COUNSEL: Jinwon Kim for the Crown Alan B. Richter for M.V.

HEARD: June 23, 2022

ENDORSEMENT

[1] M.V. was convicted, on January 8, 2021, of sexual assault, sexual interference and invitation to sexual touching by a justice of the Ontario Court of Justice. The sexual assault conviction was conditionally stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 SCR 729. He was sentenced on the remaining two offences on June 23, 2018 to 18 months in prison plus probation for two years and a number of ancillary orders.[^1]

[2] The circumstances of the offences can be briefly stated. The incidents that gave rise to the charges against M.V. occurred at M.V.’s brother’s house in Bowmanville. A small group, including the complainant and her father, were gathered at the brother’s home to watch a hockey game. The complainant testified about three different times that she found herself outside of the residence alone with M.V. She generally described going outside to text with her boyfriend and being followed outside by M.V.

[3] The trial judge found that on each occasion when the complainant and M.V. were outside together, M.V. engaged in inappropriate sexual conversation with the complainant. The complainant, I note, was 14 and M.V. was 61. M.V. spoke to her about doing sex trade work, about making pornographic movies and about how he would like to watch another male have sex with her. On the third occasion, M.V. stroked the complainant’s leg in a sexual manner and used a crooked finger to briefly pull back the elastic waistband on her pants.

[4] M.V. appeals his conviction to this court and applies for bail pending appeal.

[5] Bail pending appeal in summary conviction matters is provided for at s. 816(1) of the Criminal Code. That section provides as follows:

A person who was the defendant in proceedings before a summary conviction court and who is an appellant under section 813 shall, if they are in custody, remain in custody unless the appeal court at which the appeal is to be heard makes a release order referred to in section 515, the form of which may be adapted to suit the circumstances, which must include the condition that the person surrender themselves into custody in accordance with the order.

[6] Section 816(1) does not provide any guidance as to who bears the onus of justifying release or detention, as the case may be. That said, the section establishes a presumption that an appellant who is in custody will remain in custody unless the court orders otherwise. That presumption suggests that it is the appellant’s onus to satisfy the court that release is justified.

[7] I note that it is settled law that an applicant seeking bail pending appeal of a conviction for an indictable offence bears the burden of establishing that release is justified by meeting each of the criteria fixed by s. 679(3) of the Criminal Code. See R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. In my view, there is no reason why the onus ought not to be the same for summary conviction appeals.

[8] M.V.’s counsel accepts that the onus is his.

[9] Unlike s. 679(3) of the Code, s. 816(1) does not provide a statement of the criteria to be applied in determining whether release pending appeal is justified in matters that proceeded by way of summary conviction. That said, the jurisprudence appears relatively settled that the criteria set out in s. 679(3) should be applied by analogy to applications for bail in summary conviction appeals. See, for instance, R. v. Erskine, 2017 ONSC 6782 at para. 13 and R. v. Ururyar, 2016 ONSC 5056 at para. 39.

[10] In the result, to succeed on his application, M.V. must establish, in accordance with the s. 679(3) criteria, that: (a) the appeal is not frivolous; (b) M.V. will surrender himself into custody in accordance with the terms of the release order; and (c) M.V.’s detention is not necessary in the public interest. See Oland at para. 19 and R. v P.M.W., 2022 ONCA 75 at para. 3.

[11] The Crown concedes that there is no serious issue that M.V. will surrender himself into custody in accordance with the terms of any release order. Release is opposed by the Crown on the first and third criteria. I will examine them in turn.

Is the Appeal Frivolous?

[12] M.V. must establish that his appeal is not frivolous. The “not frivolous” threshold sets a very low bar. See Oland, para. 20. An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. M.V. does not have to establish that he is certain or even likely to succeed. He need only be able to point to a viable ground of appeal that would warrant appellate intervention if established. See R. v. Mannaseri, 2013 ONCA 647 at para. 38.

[13] M.V.’s Notice of Appeal sets out two grounds of appeal. Specifically:

1. The learned Trial Judge erred in his consideration of the law regarding assessing a witness’ credibility and reliability and thus improperly considered and assessed the evidence of the Crown witnesses.

2. The learned Trial Judge failed to consider all of the evidence called by the Crown and in so doing, overlooked contradictions in the evidence of the two Crown witnesses on significant and material areas of the Crown’s case.

[14] The first ground, as fleshed out in oral argument, is an alleged legal error regarding the manner in which a young witness’ evidence is to be assessed.

[15] In this instance, the complainant’s evidence in chief consisted in large part of her videotaped statement given to the police on November 5, 2018, several weeks after the incidents in issue occurred. She was 14 years old at the time of the statement and 16 years old at the time of the trial.

[16] In the course of his reasons for judgment, the trial judge addressed the manner in which the evidence of a child witness should be approached, as follows:

The Crown submitted that I need to assess the complainant as a child witness as directed by multiple appellate directions. As a principle of law, I agree, but the context here is that the allegations occurred when she was 14 and testimony when she was 16. As I pointed out to the Crown, young charged people in Youth Court between the ages of 14 and 16 do not seem to enjoy the same degree of consideration as the Crown seems to be suggesting should be afforded to a similarly aged complainant. Where I do accept the need to assess the complainant’s testimony in light of her age is in her description of being unsure of her father’s reaction to disclosing to him, and hence disclosing via text as a more personally comfortable manner of communicating with the father.

[17] It is certainly debatable whether the trial judge provided a correct articulation of the manner in which the court is to approach the testimony of a child witness.

[18] In R. v. B.(G.)., 1990 7308 (SCC), [1990] 2 S.C.R. 30, the Supreme Court adopted a common sense approach to assessing the credibility and reliability of the evidence of a child witness. Taking such an approach often means that flaws in a child’s evidence may not be given the same weight as similar flaws in the testimony of an adult.

[19] In R. v. R.W. (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134, the Supreme Court instructed trial judges on how to approach the testimony of an adult witness who testifies about events occurring during childhood. Justice McLachlin, as she then was, wrote, at page 144:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[20] M.V.’s counsel submits that the trial judge approached the complainant’s evidence – largely given through her videotaped police statement – as though it was the evidence of a 14 year old. He says the trial judge ought to have approached her evidence as though it was given by a 16 year old, since that is how old the complainant was at trial and because she adopted the content of her videotaped statement as part of her trial testimony.

[21] Candidly I do not consider this a particularly compelling ground of appeal. The same common sense approach to the complainant’s evidence was called for regardless of whether she was 14 or 16. One might arguably forgive the inconsistencies in a 16 year old’s evidence a little less than those of a 14 year old, but in my view, the difference in the level of scrutiny would be very minor. In any event, applying the reasoning from R. v. R.W., the complainant’s evidence about things that happened to her as a 14 year old must be considered in the context of her age at the time the events occurred.

[22] Reading the judgment as I whole, it does not appear to me that the trial judge approached the complainant’s evidence in anything other than a common sense manner. Nothing in the judgment jumps out at me as being too forgiving of inconsistencies in light of the complainant’s age and the application of the principles of R. v. R.W. and R. v. B.(G.).

[23] That said, I accept that this ground of appeal is at least arguable.

[24] With respect to the second ground of appeal, M.V.’s counsel asserts that the trial judge failed to mention – and to appropriately weigh – a number of inconsistencies in the complainant’s evidence. Those inconsistencies were both internal and external, arising, in the latter case, when her evidence is compared to her father’s testimony. Her father was the only witness, apart from the complainant, to testify at trial.

[25] Two inconsistencies were identified by the appellant’s counsel:

(i) The complainant described an incident where M.V. purportedly hugged her. She was inconsistent about whether that hugging took place at the appellant’s home in Barrie or at his brother’s home in Bowmanville; and,

(ii) As I noted, the complainant described three occasions when she was alone with M.V. outside of his brother’s residence. She did not mention her father coming outside at any time when she was with M.V. Her father, however, did mention going outside and seeing them both. According to him, the complainant and M.V. were standing somewhat apart and did not appear to be interacting.

[26] According to the appellant, the trial judge erred by failing to mention either of the foregoing inconsistencies and, arguably at least, giving them no weight. What this assertion boils down to, as Crown counsel rightly pointed out, is a suggestion that the verdict was unreasonable.

[27] Chief Justice Wagner recently commented on the test to be applied to assertions of an unreasonable verdict in R. v. Brunelle, 2022 SCC 5. He noted that there are two bases on which an appellate court could justifiably intervene based on an assertion of an unreasonable verdict. First, where the verdict cannot be supported by the evidence. Second, where the verdict is vitiated by illogical or irrational reasoning.

[28] The Chief Justice went on to instruct that credibility assessments are questions of fact. “A trial judge’s assessment of the credibility of witnesses may be rejected only where it cannot be supported by any reasonable view of the evidence.” (Brunelle, para. 8). Citing Housen v. Nikolaisen, 2002 SCC 33, he re-affirmed that “the mere fact that the trial judge did not discuss a certain point or certain evidence in depth is not sufficient grounds for appellate interference.” (Brunelle, para. 9).

[29] It strikes me that the appellant’s second ground of appeal tends to invite this court to intervene with the trial judge’s ruling because he failed to discuss certain points. I think the appellant will be hard-pressed to succeed on this line of argument.

[30] It is not my job, of course, to decide the appeal, nor to fix odds on its likelihood of success. I am mindful that the “not frivolous” threshold is extremely low. The appellant has identified two arguably viable routes to appellate intervention. Both grounds are, in my view, weak – the second particularly so. But I would not say that they fail to meet the extremely low threshold of not frivolous. They do come perilously close to the line.

Does the Public Interest Require Detention?

[31] The public interest criteria has two aspects: public safety and pubic confidence in the administration of justice. See Oland, paras. 23-26.

[32] The public safety component tends to track the requirements of the secondary ground for detention provided for at s. 515(10)(b) of the Criminal Code. The secondary ground asks whether continued detention is necessary for the protection or safety of the public, including any victim or witness, having regard to all of the circumstances, including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice.

[33] I am not persuaded that there is any serious risk to public safety should M.V. be granted bail pending appeal. He was initially released, following his arrest, on an undertaking dated December 4, 2018. He was subject to conditions that he remain out of Durham Region and that he not have any contact with the complainant and her father. He has abided by those conditions for 3 ½ years, including 18 months post-conviction. He now proposes a more stringent plan of release which includes a surety provision in the amount of at least $5,000.

[34] One could not reasonably conclude, in these circumstances, that there is a substantial likelihood that he will commit further offences or interfere with the administration of justice if released pending appeal.

[35] The public confidence component involves the weighing of two competing interests: enforceability and reviewability. See Oland, para. 24. The enforceability interest reflects the need to respect the general rule that judgments take immediate effect and are to be enforced immediately. The reviewability interest reflects the recognition that the administration of justice is a human endeavour. Humans are not perfect. Everyone makes mistakes. Those convicted of criminal offences should be entitled to a meaningful review process. More specifically, one that allows them to test the correctness of their conviction, prior to the completion of any sentence imposed.

[36] The public confidence component tends to be implicated in appeals of convictions for more serious offences. As Chief Justice Wagner observed, it rarely plays a role, much less a central role, in the decision to grant or deny bail pending appeal. Oland, para. 29.

[37] Where implicated, the public confidence component tends to track the requirements of the tertiary ground of detention provided for at s. 515(10)(c) of the Criminal Code. The tertiary ground engages the court in the assessment of a number of factors, including:

(i) The apparent strength of the prosecution’s case;

(ii) The gravity of the offence;

(iii) The circumstances surrounding the commission of the offence, including whether a firearm was used;

(iv) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[38] The tertiary ground factors have to be adapted, of course, to the appeal context. We now know, for instance, that the prosecution’s case was sufficiently strong to support a conviction. M.V. is no longer clothed with the presumption of innocence, which provides a constitutionally significant impetus to favour release in the pre-trial context.

[39] In the appeal context, the strength of the Crown’s case, which generally relates to the reviewability interest, requires the court to consider the strength of the appellant’s grounds of appeal. Even where appeals have met the low threshold requirement of not frivolous, the relative merit of the appeal remains a consideration in the context of maintaining public confidence.

[40] In the case at bar, I am of the view, as I have expressed, that the appeal, while not frivolous, is extremely weak. This fact tends to lessen the weight to be afforded to the reviewability interest in the overall balancing of the public confidence component of the public interest test.

[41] Factors (ii) through (iv) of the tertiary ground reflect the enforceability interest.

[42] The seriousness of the crime undoubtedly plays a role in the maintenance of public confidence of the administration of justice in the bail context. So do any residual concerns about public safety that do not rise to the level of a substantial risk.

[43] We now know that the sentence imposed includes a period of imprisonment of 18 months. While not short by any means, it is not in the range I would consider a “lengthy term”.

[44] Moreover, while all offences of sexual violence against children are grave offences (see R. v. Friesen, 2020 SCC 9 at para. 5), the offence of sexual interference may include a wide range of conduct along a spectrum of seriousness. In situating any particular case along that spectrum, the Supreme Court directed, in Friesen, at paras. 121-154, that trial judges should consider a number of factors including: (1) the likelihood of re-offence; (2) abuse of a position of trust or authority; (3) duration and frequency; (4) age of the victim; (5) degree of physical interference; and (6) victim participation. I will briefly consider each factor in turn.

[45] M.V’s lawyer obtained a risk assessment from a psychiatrist at the Centre for Addiction and Mental Health. That report, dated August 31, 2021, puts M.V. in the low-moderate range for future sexual violence against minors. I note that M.V. has a conviction from December 2000 for sexual assault involving his then 17 year old stepdaughter. He received a sentence of 18 months plus 3 years probation for that offence. The risk assessment takes account of that prior conviction. In the absence of any other evidence, I accept that M.V. presents a low-moderate risk of future offence.

[46] M.V. did not stand in the position of trust or authority in relation to the complainant.

[47] There was only one incident that gave rise to the charges before the court.

[48] The complainant was 14 at the time of the offences. She was a child, which is an aggravating factor. But the power imbalance between the complainant and M.V. was not as pronounced as it may have been had she been pre-pubescent, or a toddler for instance. That said, as the Supreme Court noted in Friesen, at para. 136, “sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse and unwanted pregnancy.” The age of the complainant remains a significantly aggravating feature in my view.

[49] The degree of physical interference was on the low end of seriousness.

[50] Victim participation is a non-issue here.

[51] We see relatively few contested applications for bail pending appeal in this court. I expect that those low numbers reflect the fact that the public interest component tends to be implicated only in more serious offences and generally not in summary conviction appeals. That said, this case is a close call in my view and it is unsurprising that it was challenged by the Crown.

[52] The appeal is weak. But it at least meets the not frivolous threshold. And, on balance, though any conviction for sexual interference is serious, the facts here tend to place it at the less serious end of the spectrum. There is no serious concern for public safety or re-offence during the proposed period of release and indeed, M.V. can point to a prolonged period of trouble-free release prior to his conviction. All things considered, I find that M.V. has met his onus to establish that his detention is not necessary to maintain public confidence in the justice system. And, on balance, the public interest does not require his detention pending the hearing of his appeal.

[53] In the result, I am satisfied, though just barely, that M.V. has met the three criteria for release pending appeal. He is to be released on terms which include the following:

(i) It is to be a surety release. His sister, Joane Beattie, shall be his sole surety, in the amount of $5,000;

(ii) He is to notify the court of his current address and he is to reside at that address or such other address as approved of in writing in advance by his surety. He is to notify the court and the Durham Region Police Service forthwith of any change in address;

(iii) He is to remain out of Durham Region at all times EXCEPT to attend court or to travel to and from and to attend pre-scheduled appointments with his counsel, Alan Richter;

(iv) He is to refrain from communicating directly or indirectly with the complainant, A.A. and her father, S.A. and he is to remain 200 metres away from anywhere either A.A. or S.A. is known to live, work, attend school, worship or otherwise be;

(v) He is to attend the hearing of his appeal, when scheduled, and he is to surrender himself into the custody of the Central East Correctional Centre in accordance with any direction provided by the justice hearing his appeal; and,

(vi) He is to prosecute his appeal with diligence and, without limiting the generality of the foregoing, he shall perfect his appeal no later than October 31, 2022.

C. Boswell J.

Date: June 27, 2022

[^1]: There was obviously a significant delay between the conviction and sentencing. That delay is largely explained by the time required by the defence to obtain a risk assessment from a psychiatrist at the Centre for Addiction and Mental Health. The assessment was prolonged due to pandemic-related restrictions, particularly in relation to the availability of phallometric testing.