R. v. J.S.K., 2026 ONSC 3484
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King, Respondent
AND:
J.S.K., Applicant (Appellant)
BEFORE: M.T. Doi J.
COUNSEL: Harleen Toor, for the Applicant
Paul Renwick, for the Respondent
HEARD: June 9 and 12, 2026
DECISION ON APPLICATION
FOR BAIL PENDING APPEAL
By order under s. 486.4(1) of the Criminal Code, information that may identify the victim or a witness shall not be published, broadcasted, or transmitted in any way. This decision complies with this restriction and may be published.
Overview
1On June 10, 2025, the applicant was convicted of assaulting his wife, failing to comply with an undertaking by communicating with his wife, and distributing intimate images of his wife without her consent. On October 24, 2025, the applicant was sentenced to 12 months of custody followed by 3 years of probation for the distributing intimate images offence, a consecutive sentence of 2 months of custody for the breach of undertaking, and a suspended sentence with 12 months of probation for the assault. The applicant is appealing against conviction and sentence.
2On June 9, 2026, I heard the application for bail pending appeal and reserved my decision on the matter. On June 12, 2026, I granted bail pending appeal on terms agreed upon by counsel for written reasons to follow. The following are my reasons for granting bail pending appeal.
Legal Principles
3Bail pending appeal is governed by s. 679(3) of the Criminal Code, RSC 1985, c C-46. To be granted bail pending appeal, the applicant must establish on a balance of probabilities that:
a. the appeal is not frivolous;
b. he will surrender into custody in accordance with the terms of the release order; and
c. his detention is not necessary in the public interest.
4On an application for bail pending appeal, the “public interest” ground under s. 679(3)(c) consists of two elements: public safety and public confidence in the administration of justice: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 CCC (3d) 32 (ONCA) at 47-48, cited with approval in R. v. Oland, 2017 SCC 17 at para 23. The public safety element relates to the protection and safety of the public and essentially tracks the familiar requirements of the so-called “secondary ground” governing an accused’s release pending trial: Oland at para 24. The public confidence element considers two competing interests: enforceability and reviewability: Ibid; R. v. K.H., 2026 ONCA 89 at para 9.
5The enforceability interest reflects the need to respect the general rule of the immediate enforceability of judgments: Oland at para 25. If a crime is more severe, the enforceability interest will be strengthened as a release pending appeal for a serious offence may shake public confidence in the administration of justice: Oland at para 37. This analysis is tied to the public safety factor in s. 679(3)(c) and assesses public safety concerns and lingering flight risks: Oland at paras 38-39.
6Reviewability refers to the notion that the justice system is not infallible, that persons who appeal are entitled to a meaningful review process and should not need to serve all or a significant part of a custodial sentence only for the decision under appeal to be overturned: Oland at para 25. This stage of the analysis is distinct from that under s. 679(3)(a) by involving a more pointed assessment of the strength of the appeal based on the grounds of appeal, their general legal plausibility, and their foundation in the record: Oland at para 44. This analysis is contextual and qualitative with no precise formula: Oland at para 49.
7Thorburn J.A. in R. v. M.R., 2025 ONCA 789 at paras 12-13 described the enforceability and reviewability considerations as follows:
12Enforceability considerations include: the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential for a lengthy term of imprisonment. The reasoning is that the more serious the crime, the greater the risk public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at paras. 37-38; R. v. M.S., 2022 ONCA 348, at para. 14.
13Reviewability involves an assessment of the strength of the appeal and extends beyond finding that the grounds of appeal are not frivolous, to a more comprehensive assessment of the general plausibility of the merits of the appeal, as meaningful review is essential to maintain public confidence in the administration of justice: Oland, at paras. 40-46.
8In assessing the public interest factor, appellate courts have grappled with the tension between enforceability and reviewability when faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other. That said, the public confidence component rarely plays a role, much less a central role, in the decision to grant or deny bail pending appeal: Oland at para 29; R. v. R.B., 2025 ONCA 828 at para 5.
9When balancing enforceability and reviewability, public confidence is measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances of the case, respectful of society’s fundamental values, and familiar with the relevant principles of justice including those adopted to protect the community at large from unjustified harm from a mistaken, disproportionate, or unfair use of the criminal law power: Oland at para 47, citing R. v. St-Cloud, 2015 SCC 27 at paras 74-80; K.H. at para 10; M.R. at para 14; R. v. Robson, 2025 ONCA 497 at para 15.
Analysis
10It was agreed that the first two grounds under s. 679(3)(a) to (b) were met as the appeal is not frivolous and the applicant will surrender into custody when required, subject to an appropriate release order. However, the Crown argued that the applicant had not met his onus in relation to the third ground under s. 679(3)(c) by not showing that his detention is unnecessary in the public interest. Accordingly, the balance of these reasons address the third public interest ground.
11The Crown argued that the applicant’s detention was necessary in the public interest to preserve public confidence in the administration of justice. In making this submission, the Crown largely focussed on the public confidence factor under the public interest analysis.
a. The Public Safety Component of the Public Interest Ground
12In my view, the applicant met his burden in respect of the public safety component.
13Detention is necessary to preserve public safety concerns. In the context of judicial interim release, a court looks to past behaviour for assistance in assessing predictors of future behaviour in respect of public safety: G.T. Trotter, The Law of Bail in Canada, 3^rd^ (Toronto: Carswell, 2024) at s. 10:10, cited with approval in M.R. at para 8.
14On September 4, 2022, the applicant was charged with assault and released on his own recognizance. He was re-arrested for a breach of his release order and released on bail on October 19, 2022 with his sister as his surety. About a week later, he was re-arrested for distributing intimate images and released on October 28, 2022 to his sister on stricter bail conditions that required him to live with his sister at her home where she resides with her husband, two adult sons, and parents-in-law. After being released on October 28, 2022, the applicant had no other breaches, complied with all bail conditions without issue, and turned himself in for sentencing. His sister was again willing to serve as his surety with a $7,000.00 pledge that was significant for her given her finances, and his proposed conditions of release closely mirrored the conditions of his previous release order pending trial. I found that the applicant has a suitable surety and that release terms could be fashioned to appropriately address any public safety concerns.
15Accordingly, I found on a balance of probabilities that the applicant met his burden on the public safety component.
b. The Public Confidence Component of the Public Interest Ground
16The analysis for the public confidence component weighs two competing factors: enforceability and reviewability. Enforceability respects the general rule as to the immediate enforceability of judgments. Reviewability concerns the need to provide for a meaningful review process that does not require persons convicted of offences to serve all or a significant part of their sentence only for the decision under appeal to be overturned: Oland at paras 24-26.
i. The enforceability interest
17In this case, the enforceability interest was significant. The context put the offences at the higher end of the spectrum of seriousness. The complainant was the applicant’s wife, making the offences a form of domestic abuse that is a statutorily aggravating factor. The distributed video revealed intimate activity that was circulated to degrade or humiliate the complainant who is identifiable in the video and was profoundly impacted by the breach of trust from its distribution without her consent, as set out in her victim impact statement.
18In this case, the enforceability interest was attenuated by the nature of the public safety and lingering flight risks that, with a strong release plan, fell short of the substantial risk mark, as the Crown fairly conceded: Oland at para 39; R. v. Ortis, 2024 ONCA 250 at para 70.
ii. The reviewability interest
19In assessing the reviewability interest, the strength of an appeal plays a central role: Oland at para 40. Under this analysis, a preliminary assessment of the strength of the appeal is made by reviewing the grounds of appeal for their general legal plausibility and foundation in the record to decide whether the grounds clearly surpass the minimal standard for the “not frivolous” criterion: Oland at paras 44-45. In addition, there is a broader public interest in reviewability that transcends an individual’s interest in any given case: Oland at para 45.
20As discussed below, I found that the proposed appeal against conviction and sentence was not so devoid of merits as to be frivolous, as the Crown fairly acknowledged. Specifically, the applicant advanced two arguments that I found gave rise to arguable grounds of appeal.
aa. First Ground of Appeal – the Villaroman issue
21The first proposed ground of appeal is that the trial judge made a Villaroman error by repeatedly stating or finding that the applicant could not point to any evidence or lack of evidence to suggest that one of the defence theories was true and, therefore, raised no reasonable doubt.
22The applicant submitted that the trial judge incorrectly applied the burden of proof for the breach of undertaking and distribution of intimate image charges, that were dependent on circumstantial evidence, by improperly shifting the analysis from whether the Crown had proven guilt beyond a reasonable doubt to whether the defence had affirmatively demonstrated an alternative explanation. Relying on R. v. Villaroman, 2016 SCC 33 at paras 30, 34, the applicant argued: a) when an essential element of the Crown’s case rests substantially on circumstantial evidence, the trier of fact must consider whether guilt is the only reasonable inference available on the whole of the evidence; and b) the Crown has not met the burden of proof beyond a reasonable doubt if other reasonable inferences remain open. As an accused has no obligation to prove an alternative theory or to call evidence to establish one, the applicant argued that the trial judge repeatedly relied on the defence’s inability to “point to evidence” and reversed the onus of proof by rejecting defence theories of the case as they were not affirmatively supported by evidence. The applicant submits that the proper question was not whether the defence had established an alternative narrative, but whether the Crown’s theory was the only reasonable inference available on the record. In turn, the applicant argued that instead of focussing on whether the Crown had excluded reasonable alternatives, the trial judge’s reasons suggest that the defence position was rejected as it was not affirmatively supported by any evidence, thus reflecting an error in applying the principles in Villaroman. The applicant further argued that no forensic evidence linked him to the Instagram account, the originating phone number, or otherwise to sending the impugned videos. As identity was central to the convictions for the breach of undertaking and distribution of intimate image, the applicant argued that this ground of appeal is substantial and not frivolous.
23In convicting the applicant, the trial judge self-instructed on the burden of proof and reasonable doubt that were sound. He then found that the Crown had established the breach of undertaking charge beyond a reasonable doubt on the following circumstantial evidence: a) the complainant had the applicant arrested for assault 1½ months earlier that gave a reason for him to have animus; b) texts threated to distribute intimate images of the complainant to people in her village in India; c) the applicant made the intimate video with the complainant; d) the applicant was the only person known to possess the intimate video; e) the texts included screen shots of an Instagram account in the name of “Selfishloving”, referring to a jilted lover; f) the Instagram account used photos of the complainant, her mother, her brother, and her sister-in-law; g) the Instagram account had no photos of the applicant; h) the complainant sent the photos in the Instagram account to the applicant before the breakdown of their marriage; and i) the applicant previously threatened to use social medial to humiliate the complainant. The applicant did not testify at trial.
24The applicant took the position at trial that the Crown had not proven the breach of undertaking charge because: a) the texts came from an unknown number; and b) an unknown third party may have taken the intimate images from the complainant’s Instagram account, created the fake “Selfishloving” account on Instagram, and then messaged the images.
25After canvassing the circumstantial evidence, the trial judge rejected the defence position for the breach of undertaking charge by commenting as follows:
The defendant is unable to point to any evidence or lack of evidence to suggest either one of the defence theories are true and thus raise no reasonable doubt.
26Having regard to this comment by the trial judge, I found that the applicant had raised an arguable ground of appeal due to an alleged Villaroman error. Although this ground of appeal may not necessarily succeed after the trial judge’s reasons and self-instructions are fully considered in their entirety, I found that this part of the reasons support the applicant’s position that the trial judge arguably misapplied the burden of proof in convicting on the breach of undertaking charge.
27Similarly, the trial judge found that the Crown had proven the distribution charge after considering the following circumstantial evidence: a) the applicant made the intimate video with the complainant; b) the defendant was the only person known to possess the intimate video; c) the defendant had a phone call with the complainant’s brother; d) during the call, the applicant threatened to humiliate the complainant by releasing the intimate video; e) moments after the call, an unknown number began texting the complainant’s brother; f) the texts included threats to humiliate the complainant by releasing the intimate video; g) the subject of the call and texts are the same; and h) the texter sent the intimate video.
28At trial, the applicant argued that the Crown had not proven the distribution of intimate image charge beyond a reasonable doubt by advancing the following theories: a) the conversation with the complainant’s brother never happened, the texts were fabricated, no video was ever sent to him, and the complainant and sister-in-law perjured themselves to falsely accuse the applicant; or, alternatively b) the conversation with the complainant’s brother and the applicant did happen but an unknown third party somehow got hold of the intimate video and texted it to the brother.
29After reviewing the circumstantial evidence for the distribution charge, the trial judge rejected the defence theory by, among other things, commenting:
Again, the defendant is unable to point to any evidence or lack of evidence to suggest either one of the theories are true, and thus raise a reasonable doubt.
30After considering this remark by the trial judge, together with his earlier comment to the same effect for the breach of undertaking charge, I found that the alleged Villaroman error raised an arguable ground of appeal on the basis that the trial judge misapplied the burden of proof in convicting on the intimate video distribution charge.
31Accordingly, I found that the alleged Villaroman error raised an arguable ground of appeal in this case.
bb. Second Ground of Appeal – Sentence
32As a second ground of appeal, the applicant submitted that the global custodial sentence of 14 months (i.e., based on consecutive custodial terms of 12 months and 2 months, respectively) is demonstrably unfit and affected by errors in principle by reflecting a substantial upward departure from sentences imposed in other cases involving convictions for distributing intimate images without consent, including cases with more aggravating factors such as repeated dissemination, broader publication, multiple victims, or extortionary conduct. On this point, the applicant argued that the sentence materially exceeded the Crown’s position at trial that an appropriate sentence would be 6 to 8 months of custody by disproportionately emphasizing denunciation and deterrence while placing undue weight on speculative concerns of future risk and lack of insight without concrete evidence of ongoing risks to the complainant or the public, relative to his rehabilitation, personal circumstances (i.e., including his employment history, completion of counselling, and community supports), and without adequately adhering to the principle of restraint.
33After hearing sentencing submissions from counsel and conducting further research, the trial judge advised counsel that he was considering a sentence in excess of the Crown’s position and invited further submission from the parties in accordance with the procedure in R. v. Nahanee, 2022 SCC 37 at para 4. In further submissions, the Crown maintained that a sentence within a range of 6 to 8 months of custody would be appropriate and consistent with the parity principle, while the defence modified its position to suggest a range of 3 to 6 months.
34On appeal, the applicant is taking the position that the trial judge overstated the aggravating considerations and under-weighed the mitigating factors that led to a sentence that is harsher than necessary to achieve the purposes of sentencing. In addition, he submits that the trial judge gave insufficient weight to the principle of totality in assessing the cumulative effect of the sentence, and particularly the serious potential collateral consequences related to his immigration status and future residence in Canada: R. v. Pham, 2013 SCC 15 at para 40. The trial judge acknowledged the potential for deportation but found that a lesser custodial sentence would not be appropriate on the particular facts of the case. Taken together, the applicant argued on this application that these purported errors make the sentence demonstrably unfit to warrant appellate review.
35The trial judge carefully reviewed the applicable sentencing principles, conducted a fairly thorough review of the factual circumstances of the case, and rigorously canvassed the applicable sentencing jurisprudence in the reasons for sentence. A sentencing judge has wide latitude in fashioning a just and appropriate sentence that is consistent with the objectives and principles under the Criminal Code. An appellate court may interfere with a sentence in only two situations: a) where the sentence imposed is "demonstrably unfit"; or b) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error impacts the sentence imposed: R. v. Lacasse, 2015 SCC 64 at paras 11, 44; R. v. Suter, 2018 SCC 34 at para 24; R. v. Abdullahi, 2020 ONCA 350 at para 46. As the threshold for appellate intervention with a sentence is high, the sentence appeal in this case may face significant obstacles.
36However, given the Crown’s position with respect to the appropriate sentencing range in this matter, I found that the sentence appeal clearly surpassed the “not frivolous” mark to justify granting bail pending appeal in this case. Reviewability acknowledges that the justice system is not infallible and that appellants should be entitled to a meaningful review process that does not require them to serve all or a significant part of a custodial sentence only for it to be reversed on appeal: Oland at para 25. On this application, the Crown conceded that the sentence appeal has arguable merit and surpassed the “not frivolous” criterion. In balancing the tension between the enforceability and reviewability interests, the court should be mindful of the anticipated delay in deciding an appeal, relative to the length of the sentence, so that bail takes on greater significance where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard and decided: Oland at para 48. In submissions, the Crown conceded the risk of the applicant serving most or all of his sentence before his appeal is heard and determined, that favours granting bail to preserve meaningful reviewability. Although the Crown argued that the delay or lack of diligence by the applicant in bringing the appeal caused the predicament he now faces, it seems that the applicant initially tried unsuccessfully to bring an inmate appeal before retaining counsel who then started the appeal with reasonable diligence. In the circumstances, I found that reviewability outweighed enforceability under the public confidence analysis. Here, there was a real risk that the applicant could end up serving most if not all his sentence before the appeal is decided if bail were not granted. As noted earlier, there are no material public safety concern. The applicant was released on bail for roughly 3 years without any breaches and turned himself in for sentencing without issue. In the circumstances, I found that he would not pose a material risk to public safety, as the Crown acknowledged, and would not pose a flight risk after his passport was surrendered as a term of his release along with others as agreed upon by the parties.
37In deciding this application, I assessed the grounds of appeal on a rather limited record that lacked a full trial transcript or the closing submissions at trial. However, the record included an affidavit by defence counsel explaining the trial proceedings that the Crown essentially accepted. In any event, in deciding this application, it is not my task to definitively assess the grounds of appeal but only make a preliminary yet pointed assessment of them, and it suffices if I am persuaded that a ground of appeal clearly surpasses the non-frivolous threshold: Oland at paras 45, 51; R. v. Nabi, 2026 ONCA 46 at para 9. As noted earlier, I found that the applicant’s two proposed grounds of appeal clearly surpassed the non-frivolous mark.
38Taking everything into account, I found that the reviewability interest overshadowed the enforceability interest on the facts of this case, that a thoughtful, dispassionate, reasonable person would accept that the applicant’s continued detention was not justified, and that his release pending appeal would not adversely impact public confidence in the administration of justice.
Outcome
39For these reasons, bail pending appeal was granted.
Date: June 15, 2026 M.T. Doi J.
R. v. J.S.K., 2026 ONSC 3484
COURT FILE NO.: CR-26-155-00AP
DATE: 2026 06 15
ONTARIO
SUPERIOR COURT OF JUSTICE
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King, Respondent
AND:
J.S.K., Applicant (Appellant)
BEFORE: M.T. Doi J.
COUNSEL: Harleen Toor, for the Applicant
Paul Renwick, for the Respondent
DECISION ON APPLICATION
FOR BAIL PENDING APPEAL
M.T. Doi J.
DATE: June 15, 2026