



WARNING

The court directs that the
following should be attached to the file:

An order restricting
publication in this proceeding under s. 486.4 of the
Criminal Code
shall continue. This section of
the Criminal Code
provides:

486.4(1)       Subject to subsection (2), the
presiding judge or justice may make an order directing that any information
that could identify the victim or a witness shall not be published in any
document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
being dealt with in the same proceeding, at least one of which is an offence
referred to in paragraph (a).

(2)     In proceedings in respect of the offences
referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the victim of the right to make an application for the order; and

(b)     on application
made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice may
make an order directing that any information that could identify the victim
shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
than an offence referred to in subsection (1), if the victim is under the age
of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
inform the victim of their right to make an application for the order; and

(b) on application of the
victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
section 163.1, a judge or justice shall make an order directing that any
information that could identify a witness who is under the age of eighteen
years, or any person who is the subject of a representation, written material
or a recording that constitutes child pornography within the meaning of that
section, shall not be published in any document or broadcast or transmitted in
any way.

(4)     An order made under this section does not
apply in respect of the disclosure of information in the course of the
administration of justice when it is not the purpose of the disclosure to make
the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
13, s. 18.

Section 486.6 of the
Criminal
Code
provides:

486.6(1)       Every person who fails to comply with
an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
in subsection (1) applies to prohibit, in relation to proceedings taken against
any person who fails to comply with the order, the publication in any document
or the broadcasting or transmission in any way of information that could
identify a victim, witness or justice system participant whose identity is
protected by the order. 2005, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.M., 2017 ONCA 805

DATE: 20171020

DOCKET: M48385 (C64129)

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Applicant/Appellant

Matthew Gourlay, for the applicant/appellant

David Friesen, for the respondent

Heard: October 16, 2017



STRATHY C.J.O.:



[1]

This matter comes
before me pursuant to s. 680 of the
Criminal Code
, R.S.C. 1985, c.
C-46, seeking an order directing a review by a panel of this court of an order
denying the applicant bail pending appeal.

Proceedings at trial

[2]

The applicant was found guilty of two counts of
sexual interference and two counts of sexual assault in relation to his then
minor daughters.
[1]
The circumstances involved repeated instances of sexual touching, while the
girls were sharing a bed with the applicant. The offences took place in the
family home, over a long time period. The trial judge noted that the acts never
progressed to more egregious and invasive forms of sexual abuse.

[3]

The trial judge sentenced the applicant to a
penitentiary term of thirty-four months after deducting two months credit for
pre-trial custody and stringent bail conditions  an effective sentence of
three years imprisonment. In sentencing the applicant, the trial judge
observed that the offences had devastating personal consequences for the
complainants and a deep and lasting impact on their lives. He also noted that
the applicant was a mature first offender with a significant history of
gainful employment.

The reasons of the bail judge

[4]

On the day he was sentenced, the applicant
sought bail pending his appeal to this court. The Crown opposed bail under the
first and third factors of s. 679(3) of the

Code
.

[5]

With respect to the first factor  that the
appeal is not frivolous  the applicant advanced grounds of appeal based on
innocent explanations for the sexual touching and innocent tainting of the
complainants evidence, thereby rendering it unreliable. Noting the absence of
trial transcripts, the bail judge found the first proposed ground did not pass
the not frivolous threshold. However, the ground based on innocent collusion
and tainting, as it related to the reliability of the complainants evidence,
was not frivolous.

[6]

On the third factor  that detention is not
necessary in the public interest  the bail judge referred to the decision of
the Supreme Court of Canada in
R. v.

Oland
,
2017 SCC 17,
347 C.C.C. (3d) 257. The applicant had
demonstrated that he was not a risk to public safety. The real issue was
whether he had established that his detention was not necessary to maintain public
confidence in the administration of justice. This, in turn, required a
balancing of the public interest in reviewability against the public interest
in enforceability. In accordance with the framework set out in
Oland
, at paras. 31-36, the bail judge then turned to a consideration of
the four factors in s. 515(10)(c) of the
Code
,
as adapted to the appellate context.
[2]

[7]

The bail judge rejected the applicants
submission that in the circumstances of this case, it was sufficient to merely meet
a not frivolous standard when assessing the apparent strengths of the grounds
of appeal. She found that, given the serious nature of the offences, a more
probing inquiry into the merits of the appeal was required. Referring to
Oland
,
at para. 44, she stated that the grounds of appeal in this case must clearly
surpass the minimal standard required to meet the not frivolous criterion.

[8]

The bail judge found that the innocent collusion
ground did not meet this standard because it would depend on a successful
challenge of the trial judges weighing and assessment of the evidence. She was
of the opinion that this would be a difficult ground of appeal, given the trial
judges detailed and thorough review of the evidence and careful findings of
fact.

[9]

Addressing the applicants submission that he
would have served most of his sentence before the appeal was heard, the bail
judge noted that the submission was based on the premise that he would be
granted parole after serving a third of his sentence, something that was not a
certainty.

[10]

Accordingly, the bail judge found that the applicant
had not established that his detention was not necessary in the public interest.
The public interest in immediate enforceability outweighed the public interest
in reviewability. She indicated that she would be prepared to consider a motion
to expedite the appeal, if requested.

R. v. Oland

[11]

In
Oland
, the Supreme Court provided
guidance concerning the public confidence factor. Moldaver J. noted, at para.
29, that this factor will rarely play a role in the decision to grant or deny
bail. An analysis of the merits, beyond the not frivolous threshold, will not
be required unless the case is likely to raise a concern about public
confidence. Where that concern exists, however, a more pointed analysis of the
strength of an appeal will be required for the purpose of assessing the
reviewability interest. He observed, at paras. 44-45:

In conducting a more pointed assessment of the
strength of an appeal, appellate judges will examine the grounds identified in
the notice of appeal with an eye to their general legal plausibility and their
foundation in the record. For purposes of this assessment, they will look to
see if the grounds of appeal clearly surpass the minimal standard required to
meet the "not frivolous" criterion. In my view, categories and
grading schemes should be avoided. Phrases such as "a prospect of
success", "a moderate prospect of success", or "a realistic
prospect of success" are generally not helpful. Often, they amount to
little more than wordsmithing. Worse yet, they are liable to devolve into a set
of complex rules that appellate judges will be obliged to apply in assessing
the category into which a particular appeal falls.

In the end, appellate judges can be counted on
to form their own "preliminary assessment" of the strength of an
appeal based upon their knowledge and experience. This assessment, it should be
emphasized, is not a matter of guesswork. It will generally be based on
material that counsel have provided, including aspects of the record that are
pertinent to the grounds of appeal raised, along with relevant authorities. In
undertaking this exercise, appellate judges will of course remain mindful that
our justice system is not infallible and that a meaningful review process is
essential to maintain public confidence in the administration of justice. Thus,
there is a broader public interest in reviewability that transcends an
individual's interest in any given case.

[12]

Moldaver J. also held, at para. 48, that in the
final balancing of the factors informing public confidence, appellate judges
should be mindful of the anticipated delay in deciding an appeal, noting that
where all or a significant portion of the sentence will be served before the
appeal can be decided, bail takes on greater significance if the reviewability
interest is to remain meaningful.

[13]

Finally, Moldaver J. gave guidance to panels of
appellate court judges reviewing decisions of single judges on bail, and to
chief justices in deciding whether to direct a panel review. As to the former,
he observed, at paras. 61-62:

Ultimately, in my view, a panel reviewing a
decision of a single judge under s. 680(1) should be guided by the following
three principles. First, absent palpable and overriding error, the review panel
must show deference to the judge's findings of fact. Second, the review panel
may intervene and substitute its decision for that of the judge where it is
satisfied that the judge erred in law or in principle, and the error was
material to the outcome. Third, in the absence of legal error, the review panel
may intervene and substitute its decision for that of the judge where it
concludes that the decision was clearly unwarranted.

This approach allows for meaningful review
while extending a measure of deference to the judge's decision.

[14]

He addressed the responsibility of the Chief
Justice, at para. 64:

The test, as I see it, should be relatively
straightforward in its application. It flows from the principles the panel is
required to apply when conducting a review. In short, the chief justice should
consider directing a review where it is arguable that the judge committed
material errors of fact or law in arriving at the impugned decision, or that
the impugned decision was clearly unwarranted in the circumstances.

[15]

With this background, I turn to the submissions
of counsel.

Applicants submissions

[16]

The applicant argues that the bail judge erred
in law by misapplying the Supreme Courts decision in
Oland
. In
particular, he argues that the bail judge adopted an overly expansive reading
of the public confidence test and permitted the apparently weak merits of the
appeal to overwhelm the balance of the analysis. He also asserts that the bail
judges decision was clearly unwarranted, in the sense used in
Oland
.

[17]

The applicant submits that the Supreme Court in
Oland
instructed courts to adopt a restrained approach to the public confidence
ground; it will only merit consideration where the offence is especially
serious, and therefore will rarely play an important role in the decision to
grant or deny bail pending appeal. He suggests that someone who is convicted of
an offence that is not at the high end of the spectrum, who is an excellent
candidate for bail, has an appeal that is not frivolous, and is subject to a
sentence that will largely be served before the appeal can be decided, should
as a general rule be granted bail pending appeal unless there is something
about the case that raises genuine public confidence concerns. The applicant
submits that nothing about this case other than the nature of the offences,
sexual abuse of children, could justify invoking the public confidence ground. The
sentence imposed in this case is below the sentencing range for this type of
offence. If the bail judge is correct, the applicant says, any offence of
sexual abuse in relation to children would engage the public confidence ground.

[18]

The applicant also contends that the bail judge
erred in giving too much weight to the perceived weakness of the appeal in her
assessment of the public confidence ground and, in particular, that she placed
too much emphasis on the lack of trial transcripts. She should have followed
the approach in
R. v. Badgerow
, 2017 ONCA 670, by focusing on the
broader context of the case, rather than delving into a detailed analysis of
the proposed grounds of appeal. The applicant points to what he suggests are
inconsistencies between the bail judges decision and
Badgerow
in submitting that a panel review would provide needed
clarification and guidance on the public confidence ground post-
Oland
.

[19]

The applicant also argues that the bail judge
erred by dismissing concerns that he will have served a significant amount of
his sentence by the time his appeal is decided on the basis that he may not be
granted parole. By any measure, he will have inevitably served at least a large
part of his custodial sentence before his appeal can be decided. Under
Oland
,
this factor should weigh heavily in the balance of enforceability and
reviewability.

[20]

Finally, the applicant argues that his detention
was unwarranted in the circumstances. He acknowledges that the phrase clearly
unwarranted in
Oland
indicates that a degree of deference is owed to
the determination of the bail judge, but argues that this deference is not
unlimited.

Respondents submissions

[21]

The respondent submits that the bail judge made
no factual or legal errors that would justify directing a panel to review her
decision, nor was her decision unwarranted. She applied the test from
Oland
correctly and this application should be denied.

[22]

The bail judge did not err in finding that the
offences in this case were serious. She considered the factors set out in
Oland
and noted that the applicant sexually abused his daughters over a period of
years when they were young and particularly vulnerable.

[23]

The bail judge then applied the correct test
from
Oland
after deciding that the offences were serious enough to
warrant a more probing inquiry into the merits of the appeal. She did not err
in finding that the merits of this case were far from strong. The grounds of
appeal in this case do not clearly surpass the not frivolous threshold because
they depend on a successful challenge of the trial judges assessment and
weighing of the evidence.

[24]

The respondent further argues that the bail
judge did not err in concluding that it was far from certain that the applicant
would get parole, particularly in light of the trial judges conclusion that he
lacked remorse.

Analysis

[25]

The question before me, then, is whether it is
arguable that the bail judge committed material errors of fact or law in
arriving at her decision, or whether her decision was clearly unwarranted.

[26]

The applicant has not identified any material
error of fact or law. In determining whether the offences were serious, the
bail judge applied the factors set out in
Oland
. She identified aggravating factors, including: the frequency and
long-term nature of the assaults; the vulnerability of the young victims; and
the egregious breach of trust by a parent. The bail judges assessment of the
seriousness of the offences is consistent with the trial judges conclusions
and does not reflect an error.

[27]

As the respondent notes, there are several
decisions of this court, both before and after
Oland
, in which bail was denied in cases of sexual offences against
children, which were described as serious: see
R. v. R.B.
, 2014 ONCA 772;
R. v. H.B.
(13
February 2015), C59960/M44723 (Ont. C.A.);
R. v. V.J.
(16 September 2016), C62416/M46931 (Ont. C.A.);
R. v.
A.Z.
(4 May 2017), C63647/M47771.

[28]

As well, the applicant has identified no error
of fact or law in the bail judges conclusion that the merits of the appeal did
not surpass the not frivolous standard. As the respondent points out, the
defence at trial appears to have been based on the assertion that the
complainants deliberately invented false allegations against their father to
punish him for past acts of violence or other parental misconduct.

[29]

In the absence of transcripts or some other
evidence as to what was at issue at trial, it is not apparent that the theory
of innocent collusion was put forward by the defence. If it was not advanced at
trial, it would be difficult to fault the trial judge for failing to address
this theory in his reasons. In any event, the trial judge addressed the
circumstances in which the abuse came to light and found that the complainants
had not colluded at all, for any reason.

[30]

I would add that I do not see that the absence
of a trial transcript should curtail the scope of the merits factor, as
submitted by the applicant. As Moldaver J. noted in
Oland
, at paras. 44-45, the assessment of the strength of an appeal must
be based on the materials in the record. Where necessary, this can be provided
through an affidavit of trial counsel, setting out the pertinent evidence and
the submissions at trial. Alternatively, digital recordings of the evidence and
submissions can be obtained in a fraction of the time and cost of obtaining
transcripts.

[31]

Based on the record that existed before her, I
can see no arguable error of fact or law in the bail judges conclusions on the
merits of the appeal.

[32]

Nor has the applicant demonstrated an arguable error
in the bail judges conclusions as to the likelihood of parole, a finding that
is entitled to deference.

[33]

I turn to the issue of whether the bail judges
decision was clearly unwarranted. I agree with the observation of Slatter J.A.
in
R. v. Beairsto
, 2017 ABCA 254, at para. 5:

It is worth noting that the "
clearly unwarranted" standard of
review mentioned in
Oland
is not engaged just
because one judge, or one panel of judges, might have come to a different
conclusion than some other judge or panel. "
Clearly unwarranted" is more closely analogous to
finding that the decision to be reviewed is so contrary to the facts and the
law that no reasonable judge could have made it. The standard of "
clearly unwarranted" is not an
invitation for the applicant to simply reargue the initial application for
release, in the hope that a different result might emerge from a different
balancing of the relevant factors:
R. v St-Cloud
,
2015 SCC 27
, at paras. 117-9,
[2015] 2 SCR 328
.

[34]

While different judges might have come to a
different decision on the facts of this case, that is the very essence of
judicial discretion. I cannot say that the decision here was clearly
unwarranted.

[35]

In my view, the bail judges decision is not
inconsistent with
Badgerow
, a case that
counsel concedes is one of a kind. Nor do I see the need to refer this matter
to a panel for the purpose of clarifying the approach to
Oland
.

[36]

For these reasons, the application is dismissed.

G.R.
Strathy C.J.O.





[1]

Conditional stays of proceedings were entered on the sexual
assault counts, pursuant to the rule against multiple convictions.



[2]

The bail judge characterized them, for appellate purposes, as:
(i) the apparent strength of the grounds of appeal; (ii) the gravity of
the offences; (iii) the circumstances surrounding the commission of the
offences; and (iv) the fact that the appellant has been sentenced to a
potentially lengthy term of imprisonment.



