



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Da Silva, 2021 ONCA 693

DATE: 20211006

DOCKET: M52666

(C69670)

Miller
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

Gabriel
    Da Silva

Applicant

Breana Vandebeek, for the applicant

Michelle Campbell, for the responding
    party

Heard: October 4, 2021 by video conference

ENDORSEMENT

[1]

The applicant was convicted of sexual assault
    and failing to comply with a court order. He has received a custodial sentence
    of three years.

[2]

The complainant was a 70-year-old personal
    support worker who had attended at the applicants home to assist the applicant
    with physiotherapy exercises and showering. The applicant had been injured in a
    workplace accident.

[3]

In order to succeed on an application for bail
    pending appeal, the applicant must establish, per s. 679(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b)
    the applicant will surrender himself into custody in accordance with the terms
    of the release order; and c) the applicants detention is not necessary in the
    public interest. The applicant has the burden of establishing that each
    criterion is satisfied on a balance of probabilities:
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19;
R. v. Ruthowsky
, 2018
    ONCA 552, at para. 3.

[4]

The Crown contests the application on the first
    and third grounds, arguing that the appeal is borderline frivolous, and that
    detention is necessary in the public interest.

[5]

For the reasons that follow, I dismiss the
    application on the basis that the applicant has not established that his
    detention is not necessary in the public interest.

Analysis

[6]

Establishing that detention is not necessary in
    the public interest turns on two considerations: public safety and public
    confidence in the administration of justice:
Oland
, at paras. 23, 26. Public
    safety and public confidence are not to be treated as separate silos:
Oland
,
    at para. 27. In this case, either public safety or public confidence
    considerations are sufficient to justify the applicants continued detention.

A.

Public Safety

[7]

Public safety justifies continued detention if
    the convicted individual is substantially likely to commit another offence or interfere
    with the administration of justice, and thereby endanger the safety of the
    public; and if detention is necessary for public safety:
R. v. Morales,
[1992] 3 S.C.R. 711, at p. 737;
R v. Stojanovski
, 2020 ONCA 285
    at para. 18;
R v. T.S.D.
, 2020 ONCA 733 at para. 47.

[8]

The applicant poses a sufficiently serious risk
    to public safety to justify his continued detention. He has a track record of
    failing to comply with court orders, notwithstanding that there were no
    incidents while he was on bail pending trial on these charges. The applicants
    charge for disobeying a court order arises out of a peace bond he entered for a
    previous sexual assault charge. There is a substantial likelihood that the
    applicant will commit another sexual crime or fail to abide by the terms of a
    release order, thereby endangering the safety of the public; continued detention
    is necessary in these circumstances.

B.

Public Confidence

[9]

Public confidence involves a balancing of the
    public interest in the reviewability of judgments against the public interest
    in enforcement. Factors to be considered are the strength of the grounds of
    appeal, the seriousness of the offences, the circumstances of their commission,
    and the sentence imposed:
Oland
, at paras. 24-25, 37-39.

[10]

The seriousness of the crime, particularly when
    the victim was vulnerable, plays an important role in assessing the strength of
    the enforceability interest:
T.S.D.
, at para. 52. The applicant has
    been convicted of a very serious offence: sexual assault of an elderly woman
    who was alone in his home in order to provide him personal care. It was a gross
    violation. It was not an aberration for the applicant, but the most violent and
    intrusive episode in a 30 year career of offending against the physical
    integrity of particularly vulnerable women.

[11]

These are factors weighing strongly in favour of
    immediate enforceability of the judgment.

[12]

With respect to the strength of the applicants
    appeal, the grounds of appeal  uneven scrutiny and misapprehension of evidence
     do not clearly surpass the not frivolous standard, and therefore do not weigh
    strongly in favour of the reviewability interest. The trial judge convicted the
    applicant on the basis of factual findings for which the trial judge gave
    detailed reasons. The applicant is, for the most part, challenging findings on
    which the trial judge will be given the highest deference on appeal:
R. v.
    C.L.,
2018 ONCA 470, at para. 24. The claimed misapprehensions of evidence
    largely relate to inconsistencies in the complainants evidence. The trial
    judge, however, was alive to these inconsistencies  which he characterized as minor
     and either reconciled them in his reasons or found them to be
    inconsequential. He found that the complainant was at times confused and her reliability,
    that is, her accuracy on some points, was suspect. Nevertheless, the trial
    judge found that her evidence on the core of the allegations  the sexual
    assault  was consistent and reliable and I accept her evidence.

[13]

The uneven scrutiny argument is, in general, a
    difficult ground on which to succeed:
R. v. Jones
, 2018 CarswellOnt
    11703, at para 8. The trial judge gave reasons for believing the complainants
    evidence. He also gave reasons for disbelieving the applicant, whom he
    characterized as a remarkably poor witness, particularly inconsistencies
    between the applicants police statement and his evidence at trial as to the
    nature and extent of his disability at the time of the incident. The trial
    judge found that at trial the applicant was overstating the degree of his
    disability and did not believe him. Neither was the trial judge persuaded by
    the applicants evidence that it was the complainant who was the aggressor, and
    initiated sex with him in the hope that the applicant would reward her with a
    generous tip. The trial judge gave the lengthy and careful reasons for
    believing or not believing the witnesses at this trial. Given the trial judges
    approach to the evidence and the deferential standard of review, this ground of
    appeal does not clearly surpass the not frivolous standard.

[14]

At the hearing of this application, counsel for
    the applicant suggested that an ineffective assistance of counsel argument
    might also be raised in the future. In support, she provided an email exchange
    said to have taken place between the applicant and his counsel during trial,
    relating to whether the applicant should lead evidence as to his physical
    disability.

[15]

Whether the applicant actually chooses to pursue
    this ground of appeal in the future, he has not yet done so. The proffered
    email is not in evidence on this motion, and I do not consider this potential
    ground of appeal in the analysis of the present motion.

[16]

The reviewability interest is related to the
    strength of the grounds of appeal. I have already indicated that I believe
    these grounds to be extremely weak. I conclude that the public interest in the
    immediate enforcement of the applicants sentence outweighs the interest in
    releasing him pending an appeal of his conviction on the grounds stated,
    notwithstanding the absence of a flight risk. It is unlikely that the applicant
    will have fully served his sentence before the appeal is heard. The applicant
    can seek to have the appeal heard on an expedited basis.

Conclusion

[17]

The application is dismissed.

B.W.
    Miller J.A.


