



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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..

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. J.J., 2020 ONCA 280

DATE: 20200429

DOCKET: M51506 (C67525)

Brown J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant (Applicant)

Colleen McKeown, for the applicant

Elena C. Middelkamp, for the respondent

Heard by Teleconference: April 24, 2020

REASONS FOR DECISION

OVERVIEW

[1]

The applicant, J.J., applies for bail pending
    appeal. This is his second application; the initial order granting him bail
    pending appeal was revoked.

[2]

On April 18, 2019, the applicant was convicted
    of one count of sexual assault. On October 7, 2019, he was sentenced to three
    years in custody, in addition to four months credit for pre-sentence custody.

[3]

The applicant applied for bail pending appeal.
    The Crown consented to his release. Bail pending appeal was granted by order of
    Fairburn J.A. dated October 18, 2019. The applicant entered into a recognizance
    in the amount of $7,500, with two sureties: his mother pledged $6,000; his
    sister $1,500. The terms of release required the applicant to live with his
    mother under house arrest.

[4]

Notwithstanding that requirement, on November
    28, 2019, the applicant was arrested and charged with several new offences,
    including firearms offences, drug offences, and breaches of a probation order
    and of the recognizance signed on October 18, 2019 (the November Charges).

[5]

The Crown thereupon sought and obtained a
    revocation of the applicants bail pending appeal, by order of Miller J.A.
    dated December 16, 2019.

[6]

On December 19, 2019, the applicants bail
    hearing on the November Charges proceeded in the Ontario Court of Justice in
    Hamilton. Bail was set but not met. The Justice of the Peace determined that
    the applicant could only be released with a new surety who could establish his
    or her financial viability, to be approved in bail court. The terms set by the
    Justice of the Peace included 24/7 supervision and ankle monitoring.

[7]

On April 15, 2020, the applicant proposed two
    new sureties: D.T.D., who has been the applicants friend since elementary
    school; and his father, D.C.D. As sureties, D.C.D. pledged $14,000; his son
    pledged $1,000. Both proposed sureties were cross-examined by the provincial
    and federal Crowns and approved by a Justice of the Peace. A release order was
    granted.

[8]

The applicant remains in the Hamilton-Wentworth
    Detention Centre and brings this second application for bail pending appeal.

POSITIONS OF THE PARTIES

[9]

The Crown opposes the application on the basis
    that the applicant has not demonstrated that his detention is not necessary in
    the public interest:
Criminal Code
, R.S.C.
    1985, c. C-46, s. 679(3)(c). In particular, the Crown relies on the public
    safety component of the public interest criterion:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. The Crown submits
    that the applicants failure to comply with the terms of his October 2019
    release signifies that a risk exists that he will commit further offences if
    released on bail pending appeal.

[10]

The applicant submits that the strictness of his
    bail plan attenuates any such risk. The new sureties were found satisfactory by
    the Justice of the Peace who granted interim release on the November Charges.
    As well, the applicants bail plan requires that he: reside with his sureties;
    be in the visual presence of one surety at all times; remain in their residence
    at all times except for medical emergencies or when he is in the direct visual
    presence of a surety; wear an electronic ankle bracelet provided by Recovery
    Science Corporation (RSC); and enter into a monitoring agreement with that
    firm, which includes a requirement that the applicant provide photo
    verification of a suretys presence each time he leaves the residence.

ANALYSIS

[11]

I am not persuaded that the applicant has
    established that his detention is not necessary in the public interest.

The public safety component

[12]

The public safety component of s. 679(3)(c) of the
Criminal
    Code
essentially tracks the requirements of s. 515(10)(b)
    governing an accuseds release pending trial:
Oland
, at para. 24. B
ail is denied only for those who pose a
    "substantial likelihood" of committing an offence or interfering with
    the administration of justice, where this "substantial likelihood"
    endangers "the protection or safety of the public" and when it is
    "necessary" for public safety:
R. v. Morales
, [1992] 3
    S.C.R. 711 at p. 737. As was noted in
Morales
, at p. 738:

[T]he bail system also does not function properly if
    individuals commit crimes while on bail. One objective of the entire system of
    criminal justice is to stop criminal behaviour. The bail system releases
    individuals who have been accused but not convicted of criminal conduct, but in
    order to achieve the objective of stopping criminal behaviour, such release
    must be on condition that the accused will not engage in criminal activity
    pending trial.

[13]

Several reasons lead me to conclude that even
    under the applicants new bail plan there exists a substantial likelihood that
    he will commit a criminal offence that would endanger the safety of the public.

[14]

The first involves the November Charges. The
    October 2019 order of Fairburn J.A. required the applicant to reside with his
    sureties  his mother and sister  and remain in their residence at all time
    except for medical emergencies or unless you are in the presence of either of
    your sureties.

[15]

The police synopsis of the November Charges
    states that on the evening of November 28, 2019 members of the Hamilton Police
    Service were monitoring a known drug house when a car parked in front of the
    house. A person left the house, entered the car, and the car went on its way.
    The police pulled the car over at 10:49 p.m. Five persons were in the car. The
    applicant was in the front passenger seat. A glass pipe with suspected cocaine
    residue was observed in plain view in the vehicle. A clear baggy of white
    powder fell to the ground from the back seat when the occupants left the car. A
    search of the vehicle disclosed a backpack on the back seat that contained a
    loaded handgun. Baggies containing what was believed to be fentanyl and heroin
    were also found.

[16]

The police synopsis states that the applicant
    was bound by two firearms prohibitions and two probation orders. He was charged
    with two counts of possession contrary to order, two counts of breach of
    recognizance, and two counts of failure to comply with a probation order. He
    was also charged with drug offences.

[17]

As applicants counsel points out, the applicant
    is presumed innocent of committing the new charges until proven guilty. However,
    as the December 16, 2019 endorsement of Miller J.A. records, at that time
    applicants counsel conceded that the test for revocation of the release order
    and cancellation of the recognizance had been met by reason of the November Charges.

[18]

The terms of the October 2019 release order of
    this court required the applicant to be in presence of a surety if he left his residence
    for a non-medical emergency. The evidence strongly indicates that the applicant
    was not on the evening of November 28, 2019.

[19]

Second, evidently the financial consequences to
    his mother and sister of breaching his recognizance were not sufficient to
    dissuade the applicant from leaving their presence. Notwithstanding the
    assurances given by the applicant in his most recent affidavit to abide by the
    directions of his sureties, his track record does not give me confidence that
    he will do so.

[20]

I come to this view not only based on the events
    underlying the November Charges, but also on the basis of the applicants
    criminal record. In his affidavit, he acknowledges that he has a criminal
    record in addition to the sexual assault conviction that is the subject of his
    appeal. As a youth, the applicant was convicted of assault (2011), theft under
    $5,000, failure to comply with an undertaking, and possession of stolen
    property (under $5,000) (2013). As an adult, he was convicted of simple drug
    possession (2016), and he pleaded guilty to breaking and entering and was
    sentenced to four months in jail (2019). For purposes of assessing the public
    safety factor, the existence of a conviction for failure to comply with an
    undertaking is troubling.

[21]

Third, the police synopsis records that a loaded
    handgun was found in the car on the evening of November 28, 2019. Whether the
    Crown can establish that the applicant had the knowledge and control required
    to prove possession of the handgun is a matter for a later trial. But, for
    purposes of this application, it is a relevant factor that the applicant, who
    was to be in the presence of a surety, apparently was in a car with others
    where a loaded handgun was present.

[22]

Fourth, the younger of the proposed sureties, D.T.D.,
    was convicted five years ago of mischief under $5,000 and failure to comply
    with an undertaking. I accept the Crowns submission that while those
    convictions do not tip the scale against the suitability of D.T.D. as a surety,
    the conviction for failure to comply with an undertaking should be of concern
    to the court.

[23]

Fifth, I have read the materials filed by the
    applicant from RSC. The monitoring service it offers uses a GPS ankle bracelet
    attached to the applicant and provides real-time information about the
    applicants location, as well as periodic compliance reports.

[24]

There are limits to the practical effectiveness
    of the RSC service. In a document titled, Overview of Criminal Programs, the
    company states:

In our view, monitoring ought not to be relied upon if the
    required standard is to prevent violations or to ensure an immediate police
    response. Rather, monitoring is best thought of as a risk management tool - it
    cannot prevent an accused from fleeing nor can it guarantee police intervention
    in a breach or offence in progress.

[25]

RSC makes a similar point in a document titled,
    Radio-Frequency (RF) & GPS Monitoring for Criminal Cases 

Program Summary, which states:

16. While the system can and does deliver violation alerts very
    quickly, typically in 1-10 minutes, we do not encourage reliance on rapid
    police response time as a factor in making a decision to release rather than
    detain an accused. This is for two reasons: firstly, because there are many
    factors that create the potential for delay in the chain of communications that
    lead from a violation event to the ultimate police response and, secondly,
    because even when there are no such delays and the police response is
    immediate, that may still not be sufficient to prevent an accused from fleeing
    or committing an offence.

17. These considerations regarding response time lead us to
    encourage decision makers to view monitoring not as a prevention tool but as a
    risk management tool that, in some cases, can have a significant impact on a
    plans ability to meet the applicable legal requirements

[26]

In
R. v. Fleming
, [2015] O.J. No. 4380 (S.C.J.), Trotter J. (as he then was),
    pointed out at para. 18 that GPS monitoring only reveals where a person is, not
    what he is doing. As observed by Hourigan J. (as he then was) in
R.
    v. Palijan
, [2012] O.J. No. 6549 (S.C.J.), at para. 25, a
    company such as RCS focuses on gathering evidence of compliance, not preventing
    non-compliance.

[27]

The weight to be given to an applicants
    willingness to enter into a GPS monitoring program with a company such as RCS
    will depend on the specific circumstances of a case:
R. v. Sotomayor
, 2014 ONSC 500, at para. 41, fn. 1. In the present case, I am not
    persuaded that the proposed GPS monitoring program significantly reduces the
    likelihood of the applicant
committing an offence that will endanger the
    safety of the public. While a GPS monitor can record the presence of the
    applicant at a specific location, such as the one where the events of November
    28, 2019 are alleged to have occurred, it cannot provide a quick response that
    would prevent such events. As well, the applicant does not have an unblemished
    record of complying with court orders.

[28]

Taking the evidence as a whole, I am not satisfied that the
    applicant has established that his release plan would reduce the risk of him
    re-offending. On the contrary, I conclude that the evidence demonstrates that a
    substantial risk exists that the applicant would commit a criminal offence that
    endangers public safety if released pending his appeal. I conclude that the
    public safety considerations are sufficient to warrant the continued detention
    of the applicant in the public interest.

The public confidence component

[29]

Although the Crown does not rely on the public confidence
    component of s. 697(3)(c), the applicant did file evidence about the merits of
    the appeal. He also filed some evidence regarding the COVID-19 pandemic. As
    stated in
Oland
at para. 27, the public safety and public confidence
    components are not to be treated as silos for a public interest analysis. I
    therefore will consider the evidence concerning the strength of the applicants
    appeal, as well as that concerning COVID-19: at para. 40.

[30]

The applicants conviction for sexual assault concerned events
    that took place when he was 20 years old and the complainant 15 years old. Both
    had been drinking at a party. There is no dispute that sexual intercourse took
    place between them. The only issue is whether the intercourse was consensual.
    The complainant testified that it was not, and that she had screamed for the
    applicant to stop. The applicant testified that the complainant wanted to have
    intercourse.

[31]

The applicant contends that there were inconsistencies and
    contradictions in the evidence of both the complainant and himself. His
    contends that the trial judge committed several errors: he discounted material
    inconsistencies and a deliberate falsehood in the complainants evidence; he
    improperly used post-offence conduct of the applicant, including a text the
    applicant sent to a friend about the incident; and he relied on impermissible
    stereotypical reasoning about the circumstances under which a 15-year old
    female would be interested in having sex in rejecting the applicants version
    of events as implausible.

[32]

The record available to assess the strength of the applicants
    grounds of appeal is, at this point, limited to the trial judges reasons.
    Transcripts of the evidence of the complainant and the applicant are not yet
    available. As a practical matter, the absence of those transcripts makes it
    difficult to assess the impact of the inconsistencies and contradictions raised
    by the applicant within the context of the entirety of the witness evidence,
    especially in the circumstances of a he said/she said case like the present
    one.

[33]

The applicant attempted to re-open his trial prior to sentencing,
    relying on evidence not led at the trial from a young woman who knew both the
    complainant and the applicant. The applicant submitted that the evidence would
    undercut that of the complainant. However, the applicants notice of appeal and
    argument on this application does not suggest that a motion for leave to adduce
    fresh evidence will be brought or that the trial judge erred in refusing to
    re-open the trial to admit such evidence.

[34]

The Crown does not dispute that the applicants appeal is not
    frivolous. However, I am not persuaded that the merits of the applicants
    appeal are such that they tip the scale against continued detention in light of
    the substantial risk to public safety that I have identified.

[35]

Finally, the applicant submits that his
    continued incarceration during the time of the COVID-19 pandemic is broadly
    relevant to the public interest analysis.

[36]

The fact of the current COVID-19 pandemic is a
    factor that can be taken into account in considering the public interest
    criterion:
R. v. Omitiran
, 2020 ONCA 261, at
    para. 26. The weight played by that factor depends upon the particular
    circumstances of each case. For example, it might play a role where an
    applicants known or documented health conditions, including his age, place him
    within a vulnerable group that is more likely to suffer complications and
    require hospitalization if he contracts the virus:
R. v. Kazman
, 2020 ONCA 251, at para. 17.

[37]

In the present case, the applicant is detained
    in the Hamilton-Wentworth Detention Centre. He is 23 years old. His affidavit
    does not disclose any medical condition that puts him in a group with increased
    vulnerability to the effects of COVID-19. While his counsels supporting
    affidavit states that in late March one employee at the Hamilton-Wentworth Detention
    Centre tested positive for the virus, the applicants record does not contain
    evidence of a significant COVID-19 outbreak at the facility.

[38]

Consequently, I do not see the fact of the COVID-19
    pandemic outweighing, on its own or in combination with the merits of the
    applicants appeal,
the substantial risk to public safety that I have
    identified.

DISPOSITION

[39]

For the reasons set out above, I dismiss the
    application for bail pending appeal.

David
    Brown J.A.


