



WARNING

The Motion Judge 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. A.B., 2022 ONCA 83

DATE: 20220127

DOCKET: M53067 (C70153)

Lauwers
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent (Responding Party)

and

A.B.

Appellant (Applicant)

James Coulter, for the applicant

Nicolas de Montigny, for the responding
    party

Heard: January 14, 2022 by video conference

REASONS
    FOR DECISION

[1]

The applicant was convicted of two counts of
child luring contrary to s. 172.1(1)(b) of the
Criminal Code
,
    R.S.C., c. C-46 for the purpose of facilitating the commission of an offence
    of sexual assault, and one count of making child pornography contrary to s.
    163.1(2). The applicant was sentenced to 36 months concurrent for child luring
    and 5 months consecutive for child pornography, based on the totality principle.
    This sentence included a 30-day credit for restricted bail conditions, which
    was subtracted from the child pornography sentence. The total sentence is 41
    months.

[2]

The applicant is appealing his conviction and is
    seeking leave to appeal his sentence. He seeks judicial interim release pending
    his appeal. For the reasons that follow, I dismiss the application for bail
    pending appeal.

A.

THE GOVERNING PRINCIPLES

[3]

Applications for bail pending conviction appeal
    are governed by s. 679(3) of the
Criminal Code
. The applicant must satisfy
    the court, on a balance of probabilities, that: (a) the appeal or application
    for leave to appeal is not frivolous; (b) he will surrender himself into
    custody in accordance with the terms of the order; and (c) his detention is not
    necessary in the public interest.

[4]

The Crown opposes release on the ground that the
    applicants detention is necessary in the public interest, on the basis of
    maintaining public confidence in the administration of justice.

[5]

In
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R.
    250, at paras. 23-26, the Supreme Court endorsed the framework for evaluating
    the public interest criterion set out in
R. v. Farinacci
(1993), 86
    C.C.C. (3d) 32 (Ont. C.A.), [1993] O.J. No. 2627. The public interest
    criterion has two components: public safety and public confidence in the
    administration of justice. With respect to the publics confidence in the
    administration of justice, the competing interests of enforceability and
    reviewability must be balanced. As Arbour J.A. said in
Farinacci
, at
    paras. 41-43:

The public interest criterion in s.
    679(3)(c) of the
Code
requires a judicial assessment of the need to
    review the conviction leading to imprisonment, in which case execution of the
    sentence may have to be temporarily suspended, and the need to respect the
    general rule of immediate enforceability of judgments.

Public confidence in the administration of
    justice requires that judgments be enforced. The public interest may require
    that a person convicted of a very serious offence, particularly a repeat
    offender who is advancing grounds of appeal that are arguable but weak, be
    denied bail. In such a case, the grounds favouring enforceability need not
    yield to the grounds favouring reviewability.

On the other hand, public confidence in the
    administration of justice requires that judgments be reviewed and that errors,
    if any, be corrected. This is particularly so in the criminal field where
    liberty is at stake. Public confidence would be shaken, in my view, if a
    youthful first offender, sentenced to a few months imprisonment for a property
    offence, was compelled to serve his or her entire sentence before having an
    opportunity to challenge the conviction on appeal.

[6]

In
Oland
, Moldaver J. elaborated on
Farinacci
s
    approach to the public interest criterion. He noted, at paras. 31-32, that an
    appeal judge hearing an application for bail pending appeal should consider the
    factors stipulated for bail pending trial under s. 515(10)(c) of the
Criminal
    Code
, with necessary modifications to account for the fact that the
    conviction has displaced the presumption of innocence. In the pre-trial context
    the onus is on the Crown to establish that an accused should be detained in
    custody, but the onus rests on the applicant to establish that he should be
    granted bail pending appeal: at para. 35. The factors to be considered are: the
    apparent strength of the prosecutions case; the gravity of the offence; the
    circumstances surrounding the commission of the offence; and the fact that the
    accused is liable, on conviction, for a potentially lengthy term of
    imprisonment.

[7]

Moldaver J. explained how, with appropriate
    modifications, the public confidence factors listed in s. 515(10)(c) are to be
    taken into account by the appeal judge in identifying the factors that make up
    the public confidence component in s. 679(3)(c).

[8]

First, when considering the public confidence
    component under s. 679(3)(c), the seriousness of the crime for which a person
    has been convicted should play an equal role in assessing the enforceability
    interest:
Oland
, at para. 37. An appeal judge should have regard to
    the sentencing judges reasons, and not repeat that evaluation afresh:
Oland
,
    at para. 38.

[9]

Second, Moldaver J. considered the reviewability
    interest, which he identified as the strength of the prosecutions case (s.
    515(10)(c)(i)):
Oland
, at para. 40. In the appellate context, this
    translates into an evaluation of the strength of the grounds of appeal. In
    assessing the reviewability interest, an appeals strength plays a central
    role. Specifically, Moldaver J. endorsed the view expressed by Trotter J.A. in
    his article entitled, Bail Pending Appeal: The Strength of the Appeal and the
    Public Interest Criterion (2001) 45 C.R. (5th) 267, at p. 270, where he
    explained:

[R]ealistically, most cases do not raise
    strong claims regarding the public interest, at least not beyond the general
    concern that all criminal judgments ought to be enforced.... However, when an
    offence is serious, as with murder cases, such that public concern about
    enforceability is ignited, there should be a more probing inquiry into the
    chances of success on appeal. It is in this context that the balancing required
    by
Farinacci
requires some assessment of the merits, separate from the
    question of whether the appeal is frivolous or not. [Footnotes omitted.]

[10]

Moldaver J. added that judges should examine
    the grounds identified in the notice of appeal with an eye to their general
    legal plausibility and their foundation in the record and consider whether those
    grounds clearly surpass the minimal standard required to meet the not
    frivolous criterion:
Oland,
at para. 44.

[11]

After assessing the enforceability and
    reviewability factors, the appeal judge must balance them, keeping in mind
    that public confidence is to be measured through the eyes of a reasonable
    member of the public:
Oland
, at para. 47. This reasonable member of
    the public is someone who is thoughtful, dispassionate, informed of the
    circumstances of the case and respectful of societys fundamental values. There
    is no precise formula, but a qualitative and contextual assessment is required:
    at para. 49. However, Moldaver J. observed that where the conviction is for murder
    or some other very serious crime, the public interest in enforceability will be
    high and will often outweigh the reviewability interest, particularly where
    there are lingering public safety or flight concerns and/or the grounds of
    appeal appear to be weak: at para. 50.

B.

THE PRINCIPLES APPLIED

[12]

As discussed, the applicant must satisfy the
    court that his appeal is not frivolous, that he will surrender himself into
    custody in accordance with the terms of the order, and that his detention is
    not necessary in the public interest.

(1)

Not Frivolous

[13]

The applicant raised five grounds of appeal. The
    primary ground of appeal, which was argued at length, concerns the proper
    interpretation of s. 172.1(1)(b). This section provides:

172.1(1) Every person commits an offence who,
    by a means of telecommunication, communicates with



(b) a person who is, or who the accused
    believes is, under the age of 16 years, for the purpose of facilitating the
    commission of an offence under section 151 or 152, subsection 160(3) or 173(2)
    or section 271, 272, 273 or 280 with respect to that person;

[14]

The offence alleged to have been facilitated in
    this case is sexual assault under s. 271. The applicant argues that the trial
    judge erred in treating the offence of child luring pursuant to section
    172.1(1)(b) in this circumstance as luring for the purpose of any of the
    enumerated offences, rather than the specific offence of sexual assault as pleaded
    in counts 1 and 2 of the Information. I will elaborate on the applicants
    argument below.

[15]

The second ground of appeal is that the trial
    judge erred in law by convicting the applicant on the standard of
recklessness
when assessing whether the essential element of
knowledge
of the
    individuals age was proven beyond a reasonable doubt, while
recklessness
cannot
    be a substitute for knowledge in these particular offences (emphasis in
    original).

[16]

The third ground is that the trial judge erred
    in law by constructively treating the failure to take reasonable steps to
    determine the age of the complainant as an independent pathway to conviction.

[17]

The fourth ground is that the trial judge failed
    to actively engage with the steps and perceptions of someone acting in [the 
Daddy-Dom-Little-Girl

    online] community, with its distinctive set of rules and roles, as providing a
    defence regarding the complainants age.

[18]

The fifth ground is that the trial judge erred
    by improperly taking subjective notice of the complainants age by using his
    own independent observations of her in court and the exhibit evidence to
    conclude that a reasonable observer would only view this individual as a
    prepubescent child, and treating the
mens rea
of these offences as
    being objective in nature.

[19]

In my view, the strongest ground of appeal is
    the first one, and I will focus on it in these reasons. The other grounds are
    much weaker, and their cumulative force adds little. That said, the not
    frivolous test is widely recognized as being a very low bar:
Oland
,
    at para. 20. I am satisfied that the appeal is not frivolous.

(2)

Surrender into Custody in Accordance with the
    Terms of the Order

[20]

Before his conviction, the applicant was on bail
    for several years, and compliance was not an issue. The Crown does not oppose
    the bail provisions.

[21]

I am satisfied that the applicant would surrender
    into custody in accordance with the terms of his release.

(3)

The Public Interest

[22]

There are two components to consider under s.
    679(3)(c): public safety and public confidence in the administration of
    justice.


(a)

Public Safety

[23]

While the offences are undoubtedly serious, I
    find the public safety concern to be negligible. The applicant has a strong
    incentive to abide by the terms of any release, as he did in complying with his
    pre-trial bail, given the appeal. I am satisfied that the applicant has
    demonstrated on a balance of probabilities that he is not a public safety
    threat and will not likely commit further offences if released on bail pending
    his appeal.


(b)

Public Confidence in the Administration of
    Justice

[24]

As outlined above, the public confidence
    component requires courts to strike a balance between enforceability and
    reviewability.

Enforceability

[25]

With respect to enforceability, [p]ublic
    confidence in the administration of justice requires that judgments be enforced:
Farinacci
, at para. 42. Several factors in this case weigh heavily in
    favour of enforceability and against the release of the applicant. The
    seriousness of the crime, as noted in
Oland
, figures in the assessment
    of the enforceability interest.

[26]

The applicant was convicted
of
egregious child luring under s.
    172.1(1)(b) on two counts, for the purpose of facilitating the commission of
    an offence of sexual assault, and on one count of making child pornography
    contrary to s. 163.1(2). At sentencing, the trial judge found: 
In this particular case, the child luring
    committed by [the applicant] was particularly serious and involves a high level
    of moral blameworthiness. However, he added: While the communications were
    graphic and continued, I did not find the offender was grooming the child to
    eventually meet. He was using her for online sexual gratification.

[27]

The trial judge pointed out several aggravating
    factors, including the length of time the luring went on, the existence of an
    actual 13 year old victim, which was expressly conveyed to [the applicant] by
    the girl and the officer posing as the girl and yet he failed to desist, and
    the transmission of sexually explicit material, including a video of himself
    masturbating to a real 13 year old child. He concluded: in the circumstances,
    the sentence, even for a first offender, must be a penitentiary term, even if it
    is imposed in the period of the Covid pandemic.

[28]

The trial judge also referred to mitigating
    factors, noting the absence of a prior record, a positive pre-sentence report, the
    applicants history of secure employment, and a supportive family who are
    aware of the offences. He considered positively that the applicant has
    undertaken some counselling and is prepared to continue with counselling. The
    trial judge noted: There appears to be genuine remorse for the consequence of
    his actions. Despite these mitigating factors, the trial judge saw fit to impose
    a significant penitentiary sentence of 41 months.

[29]

To conclude, in my view the enforceability
    interests weigh heavily against release. The offences were very serious, there
    were aggravating factors, and the applicant was sentenced to a lengthy term of
    imprisonment.

Reviewability

[30]

Moldaver J. noted in
Oland
, at para.
    40, that the strength of the appeal plays a central role in assessing the
    reviewability interest. In my view, while a preliminary assessment of the
    strength of the appeal reveals that the grounds of appeal are arguable, they do
    not 
clearly surpass
the minimal standard required
    to meet the not frivolous criterion (emphasis added):
Oland
, at
    para. 44.

The Strength of the Appeal

[31]

As noted above, the applicants main argument is
    that the trial judge erred in treating the offence of child luring pursuant to
    section 172.1(1)(b) in this circumstance as luring for the purpose of any of the
    enumerated offences, rather than the specific offence of sexual assault as pleaded
    in counts 1 and 2 of the Information.

[32]

In other words, the applicant takes the position
    that the Crown was obliged to prove the mental element or
mens rea
attached to sexual assault in order to get a conviction. The applicant asserts
    that because the trial judge found that he had intended never to meet with the
    complainant because he valued his anonymity, it was therefore impossible [for
    him] to have facilitated the offence of a sexual assault. Putting it in
    other words: The purpose of the communications could never have been intended
    to facilitate the commission of the offence of sexual assault, if there was
    never an intention to meet in person. The applicant cites the Supreme Court
    for the proposition that: the accused must be shown to have engage[d] in the
    prohibited communication with the
specific intent
of facilitating the commission of one of the designated offences with respect
    to the underage person who was the intended recipient of communication
    (emphasis in original):
R. v. Legare
, 2009 SCC 56, [2009] 3
    S.C.R. 551, at para. 32, citing
R. v. Alicandro
, 2009 ONCA 133,
    95 O.R. (3d) 173.

[33]

First, in my view the applicant overstates the
    trial judges finding. Second, he misconstrues
Legare
.

[34]

In
    his reasons, the trial judge found a reasonable doubt that the applicant was
    working towards a meeting with the 13-year-old complainant. He said:

The prospect of a meeting is not the
sine
    qua non
of the offence as contemplated by s. 172.1 of the
Code
.
    Even when no meeting is arranged, an

accused can facilitate a sexual
    offence with a

young person.

The accused may have spoken about a meeting in
    Kingston to continue the narrative and he may have ultimately arranged to meet
    the young person if the communications had continued, but I accept his
    communications with the young person at that stage were part of the narrative
    only and he wanted this to be an online anonymous relationship. In his
    conversation with Detective Wohlert, it was the Detective who was driving the
    meeting discussions. The accused did not terminate that discussion and, as I
    said,
he may have ultimately wished to meet the young
    person, but he has raised a doubt that he had intentions at that time to meet
    the young person
.

[35]

Contrary to the applicants assertion, the trial
    judge did not find that the applicant intended to
never
meet with the complainant.

[36]

The applicant highlights para. 32 of Fish J.s
    reasons in
Legare
, which I more fully quote here:

[T]he intention of the accused must be
    determined
subjectively
.... As Doherty J.A. stated in
Alicandro
, at para. 31, the accused must be shown to have engage[d] in the
    prohibited communication with the
specific intent
of facilitating the
    commission of one of the designated offences with respect to the underage
    person who was the intended recipient of communication. [Italics and
    underlining in original.]

[37]

However, these words must be taken in context
    with para. 25, which initiates and conditions the ensuing discussion, including
    para. 32:

[38]

It will immediately be seen that s. 172.1(1)(c)

creates an incipient or inchoate offence, that is, a preparatory crime
    that captures otherwise legal conduct meant to culminate in the commission of a
    completed crime. It criminalizes conduct that
precedes
the commission
    of the sexual offences to which it refers, and even an attempt to commit them.
    Nor, indeed, must the offender meet or intend to meet the victim with a view to
    committing any of the specified secondary offences. This is in keeping with
    Parliaments objective to close the cyberspace door before the predator gets in
    to prey. [Emphasis in original.]

[39]

I note that in
R. v.

Morrison
,
    2019 SCC 15, [2019] 2 S.C.R. 3, Moldaver J. cited
Legare
and affirmed,
    at para. 40, that [t]here is no requirement that the accused meet or even
    intend to meet with the other person with a view to committing any of the
    designated offences. See also Professor Hamish Stewarts article, 
Legare
:
Mens Rea
Matters (2010) 70 C.R. (6th) 12. Both counsel agree that
    they were unable to find any cases that take the approach the applicant proposes.

[40]

I would not say the applicants case is
    frivolous. But it is weak in view of Fish J.s clear language in para. 25
    of
Legare
. It is not the
mens rea
of the specified offence
    sought to be facilitated  in this case sexual assault  that the Crown must
    prove. It is sufficient for the Crown to prove facilitation itself, which includes
helping to bring about and making easier or more probable
 for example,
    by luring or grooming young persons to commit or participate in the
    prohibited conduct; by reducing their inhibitions; or by prurient discourse
    that exploits a young persons curiosity, immaturity or precocious sexuality
    (emphasis in original):
Legare
, at para. 28.

Discussion

[41]

I turn to the factors to be balanced. I see the
    Crowns position in the appeal as strong, and the applicants as weak. These
    vile crimes are grave, and the applicant has been sentenced to a lengthy term
    of imprisonment.

[42]

While it is relatively rare for a bail pending
    appeal application to be resolved on public confidence considerations, this is
    one of the difficult cases ... in which the public confidence component is
    raised:
Oland
, at para. 30. The interest in enforceability is very
    strong. The interest in reviewability is not.

[43]

Ultimately, although the reviewability interest
    still supports release, the applicants conviction on three serious counts
    mitigates the strength of the reviewability interest. In short, the
    enforceability interest outweighs the reviewability interest in this case. Were
    the applicant to be released pending appeal, I have no hesitation in concluding
    that a reasonable member of the public, informed of the egregious
    circumstances, would lose confidence in the administration of justice.

[44]

I find that the detention of the applicant is
    necessary in the public interest and dismiss the application for bail pending
    appeal.

[45]

I am mindful of Arbour J.A.s comments in
Farinacci
,
    at para. 43, that the court must keep in mind a situation in which denial of
    bail would render the appeal nugatory, for all practical purposes because the
    sentence will have been largely served before the appeal is resolved. I therefore
    order that the appeal be expedited, pursuant to s. 679(10) of the
Criminal
    Code
.

P.
    Lauwers J.A.


