



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. U.K., 2022 ONCA 21

DATE: 20220112

DOCKET: M53093 (C68076)

Lauwers
    J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent
    (Responding Party)

and

U.K.

Appellant
    (Applicant)

Mark C. Halfyard,
    for the applicant

Amy Alyea, for the responding
    party

Heard: January 11,
    2022 by video conference

REASONS
    FOR DECISION

[1]

On November 6, 2019, a jury found the applicant
    guilty of sexual assault. The trial judge sentenced him to two years less a day
    incarceration, followed by two years of probation, together with ancillary
    orders. The trial judge recommended that he be allowed to serve his sentence at
    the Ontario Correctional Institute in Brampton.

[2]

Under the release order of Miller J.A., dated
    December 16, 2021, the applicant was released on bail pending appeal. His sister
    is his surety in the amount of $60,000, without deposit. He has been on bail
    without material variations since then.

[3]

Among the applicants bail conditions are that he
    must remain in the Province of Ontario, reside at a certain location, and
    surrender his passports and not apply for any travel documents.

[4]

While he was on bail before trial, the applicant
    was allowed to leave Canada twice, once to travel to Norway for three weeks for
    a wedding, and another time to travel to Pakistan for a month to attend another
    family wedding. He was also permitted to go to Montreal for a week for
    employment purposes. He returned to Ontario without incident.

[5]

After he was convicted but before he was sentenced,
    the applicant requested permission to travel to Pakistan to visit his family. The
    application judge, Stribopoulos J., refused this request, even though the Crown
    had consented.

[6]

Although the application judge acknowledged that
    the applicant had been permitted to travel before his conviction, he noted that
    the circumstances have now changed. [The applicant] no longer benefits from
    the presumption of innocence. He has been found guilty of a very serious
    criminal offence and faces a lengthy period of imprisonment. In the
    application judges view, at that point a penitentiary term seemed rather
    likely. As Justice MacPherson observed in
R. v. Patterson
,
    [2000] O.J. 3189 (C.A.), at para. 11:

Before trial, an accused person might reject
    flight because of the role optimism and hope play in the decision-making
    process. However, once convictions are entered, for [the accused]  the reality
    of lengthy incarceration must be a bitter pill to swallow. When optimism and
    hope recede, thoughts of flight might well advance.

[7]

The application judge added the following: In
    my view, despite his lack of any prior criminal record, the fact that [the
    applicant] has been found guilty and faces a lengthy sentence of imprisonment
    changes the calculus. For someone in his circumstances, $10,000 may seem like a
    very small price to pay to avoid a lengthy period of imprisonment.

[8]

The application judge acknowledged that there
    were many ties between the applicant and Canada, but found that the details
    about his Canadian situation and circumstances in Pakistan were sparse. For
    these reasons, he refused to vary bail to allow the applicant to travel to
    Pakistan.

[9]

The applicant again requests a variation, but on
    a different basis. He asks to be permitted to go to Pakistan to resell a
    container load of automotive parts that he has shipped there, which is
    scheduled to arrive on January 15, 2022. He wishes to retrieve the shipped
    automotive parts and then to sell them in order to supplement his income as an
    automobile mechanic, which has declined significantly as a result of COVID-19.
    His affidavit states: I am requesting a variation to my current bail order to
    allow me to travel to Pakistan for approximately a one-month period, between
    January 12, 2022 to February 12, 2022, and to changes to my residency clause
    during that period, and to permit me to retrieve my passport from the
    officer-in-charge. He agrees to provide a detailed itinerary to the
    officer-in-charge in advance of the trip. He adds that his surety is aware of
    the request and has agreed to continue to act even though her $60,000 bail
    would be at risk.

[10]

The applicant argues that the shortcomings in
    his previous bail variation application have now been remedied.

[11]

The Crown argues that the application judges
    reasons continue to have weight and that this court should refuse the bail
    variation.

[12]

It is common ground that the two main issues are
    whether the applicant would return without incident after the trip to Pakistan,
    and whether the public interest balance favours the variation.

[13]

The first issue addresses the concern that the
    applicant might be a flight risk. The Crown acknowledges that the applicant has
    close ties to Canada. However, the applicant has dual citizenship in Canada and
    in Pakistan. Although he has strong Canadian connections, he also has
    significant connections in Pakistan. The inference the Crown invites is that the
    applicant could easily just stay in Pakistan. She points out that there is no
    extradition treaty between Canada and Pakistan and if the applicant refuses to
    return, nothing can be done.

[14]

The Crown notes that the value of the shipment
    of automobile parts is $90,000. According to the applicant, these parts will
    typically sell for a 50 percent profit in Pakistan. In light of those numbers, the
    current bail amount of $60,000 does not look like much of a flight disincentive,
    even though it is a much larger amount than the $10,000 proffered at the previous
    post-conviction bail variation hearing. The Crown agrees that her flight
    concerns would be mitigated to some extent by an increase in the amount of the
    bail. Finally, she notes that there is no great necessity for the applicant to
    go to Pakistan. His brother, who works with him at his shop here could go, and the
    applicant has relatives in Pakistan who could also assist him.

[15]

On the public interest issue, the Crown argues
    that the offence is a serious one and the sentence is also serious. The Crown
    relies on the decision of Thorburn J.A. in
R. v. Sousa
, 2020 ONCA
    432, in which a bail variation was denied for an applicant convicted of a
    serious and violent sexual assault. She adds that the merits of the appeal are arguable
    but not strong. The Crown submits that it is open to this court to reconsider
    the merits, a proposition with which the applicant agrees.

[16]

The applicant argues that the calculus presented
    to this court is quite different than the one before the application judge.
    Without disputing that this is both a serious charge and a serious offence, he
    points out that the application judge believed it likely that the eventual
    sentence would involve penitentiary time. It did not. In fact, it is expected
    that the applicant will serve no more than eight months in jail, assuming that
    his appeal is dismissed. It is unlikely that this sentence would create a sufficiently
    strong incentive for the applicant to abscond and abandon his life in Canada.

[17]

As for the public interest balance, the applicant
    points out that
Sousa
involved a violent sexual assault on a stranger for
    which the applicant received a ten-year-sentence. Such an assault poses
    residual public safety concerns, but does not resemble the assault in this
    case. The applicant has complied with his bail conditions throughout. The applicant
    agrees that it is open to this court to increase the bail amount to enhance the
    pressure on the applicant to return to Canada.

[18]

I do not believe that the applicant poses a
    serious flight risk, but I am unable to say that there is no such risk.
    Accordingly, I would increase the amount of the bail to $125,000. I do not
    believe that the public interest grounds are overwhelming in this case, as they
    were in
Sousa
. In particular, I have no residual public safety
    concerns about the applicant.

[19]

I would therefore vary the release order as
    requested, except for the bail amount, which I would increase to $125,000.
    Order accordingly.

P.
    Lauwers J.A.


