



WARNING

The judge hearing this motion 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. T.S.D., 2020 ONCA 773

DATE: 20201203

DOCKET: M51923 (C68717)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

T.S.D.

Applicant

Jonathan Shulman, for the applicant

Jennifer Trehearne, for the respondent

Heard: November 13, 2020 by video conference,
    with supplemental submissions in writing

REASONS
    FOR DECISION

A.

introduction

[1]

The applicant pleaded guilty to sexual assault and
    distributing intimate images without consent. He and another male had
    videotaped each other sexually assaulting the complainant at a house party while
    she was unconscious. The applicant then circulated the video on a group chat on
    Snapchat. The applicant was sentenced to 18 months imprisonment followed by
    two years probation and various ancillary orders.

[2]

The applicant now applies for bail pending his
    conviction and sentence appeal. He alleges that his guilty plea was not
    informed and claims ineffective assistance of counsel.

[3]

For the reasons that follow, the application is
    dismissed.

B.

background

(a)

The sexual assault

[4]

On May 19, 2018, the applicant (then aged 19) was
    at a house party attended by 15 to 20 people at the house of the complainant
    (then aged 18), whom he knew from high school. Her parents were away. Everyone
    was drinking, including the complainant. She had also been smoking marijuana.
    At about 1:40 a.m., she felt intoxicated and dizzy, so she went upstairs, lay
    on her parents bed, and fell asleep, fully clothed in jeans and a T-shirt.

[5]

When she awoke, she was naked from the waist
    down. She had pain in her lower abdomen and was bleeding from her vagina. A
    friend told her he had received sexual videos of her and some males through a
    group chat on Snapchat. She did not recall engaging in sexual activity, but remembered
    seeing the applicant in the bedroom, and thought it must have been he who recorded
    the videos because she recalled seeing him through the flash of a camera. She
    also remembered waking up and seeing three or four people in the room laughing.
    She told them to get out and fell asleep again.

[6]

The next day, the complainant reported the sexual
    assault to the police.

(b)

The applicant is arrested and his phone is seized

[7]

Two days later, the police arrested the applicant
    at his apartment. They charged him with gang sexual assault and distributing
    intimate images without consent.

[8]

When the police arrested the applicant, they
    seized his cellphone incident to arrest and later obtained a warrant to search it.
    They found the videos on his phone, which showed the applicant penetrating the
    complainants vagina with a brush handle while laughing and another male
    digitally penetrating the complainant while the applicant filmed. The
    complainant appeared to be unconscious.

(c)

The court appoints counsel for the applicant
    under s. 486.3 of the
Criminal Code

[9]

On June 10, 2019, at the Crowns request, Botham
    J. of the Ontario Court of Justice appointed counsel for the applicant under s.
    486.3 of the
Criminal Code
, R.S.C. 1985, c. C-46, to conduct any
    cross-examination of the complainant at the applicants preliminary inquiry, scheduled
    for July 8, 2019. The applicant previously had a lawyer but could no longer
    afford him.

(d)

The applicant pleads guilty

[10]

On July 8, 2019  the first day of the applicants
    preliminary inquiry, scheduled before Maxwell J. of the Ontario Court of
    Justice  the applicants counsel asked for the matter to be held down until
    after a break to explore resolution. It appears from the record before me that
    by July 6, 2019, the applicant had personally retained her since she later
    issued an invoice to the applicant himself. On the afternoon of July 8, the
    applicants counsel advised the court that the applicant would plead guilty to the
    lesser included offence of sexual assault
simpliciter
(rather than
    gang sexual assault) and distributing intimate images without consent.

[11]

The applicants counsel advised Maxwell J. that the
    applicants guilty plea was an informed plea, reached after the applicant had
    several opportunities to meet with counsel and review the Crown disclosure with
    her:

So, I can advise Your Honour that

this is an informed plea; that Mr. [T.S.D.] has an
    opportunity, several opportunities to meet with me and review the disclosure.
    He does understand that in entering a guilty plea today he is giving up his
    right to a trial and any defences that may be available to him.

He does understand that whatever position on
    sentence the Crown takes
is not going to be
the
    same position as the defence and that ultimately the position on sentence
is going to be
up to Your Honour. He does understand
that
these convictions, likely convictions,
    that will result from his guilty pleas will form part of his criminal record.
    And he is doing so voluntarily
without any
pressure
    from any outside sources. Is all of that correct, Mr. [T.S.D.]?

[T.S.D.]: Yes, maam.

[12]

Maxwell J. then conducted a plea inquiry to
    ensure that the applicant was pleading guilty with full knowledge of what
    youre giving up. The applicant confirmed to the court that he understood that:

·

He was pleading guilty to sexual assault and distributing
    intimate images of someone without her consent, that he had had sexual contact
    with someone without her consent, and then distributed or allowed to be
    distributed intimate images of her without her consent;

·

The Crown would likely seek an upper reformatory
    sentence (which was explained to him as in the range of 18 months to two years
    less a day), though the sentence imposed by the court could he higher;

·

The convictions would form part of his criminal
    record and he would have to register with a sex offender registry and be
    subject to reporting requirements; and

·

There might be other consequences for the
    applicant, such as immigration consequences, being unable to work in certain
    fields, or restrictions on travel, all of which he had considered.

[13]

The applicant was then arraigned and pleaded
    guilty. An agreed statement of facts was read into the record, which the
    applicant admitted was substantially correct. Maxwell J. then found the
    applicant guilty.

(e)

The applicant is sentenced

[14]

Sentencing submissions were made on March 3,
    2020. The Crown sought a sentence of imprisonment of two years less a day followed
    by two years probation, and various ancillary orders, including a mandatory
    order for 20 years under the federal
Sex Offender Information Registration
    Act
, S.C. 2004, c. 10 (SOIRA), because the Crown had proceeded by
    indictment:
Criminal Code
, s. 490.022(3)(b). The applicants counsel
    urged a sentence of 9 to 12 months imprisonment, followed by two years
    probation. She noted the applicant would be subject to a lengthy SOIRA order.
    Mr. [T.S.D.] likely wont be able to work in his chosen field [of health and
    fitness] or face an extremely uphill battle to do so.

[15]

After submissions on sentence, the sentencing was
    adjourned to April 14, 2020, but did not proceed then because of the pandemic. The
    applicant was on bail throughout this period.

[16]

The court ultimately pronounced sentence on September
    22, 2020. The applicant was sentenced to 18 months imprisonment, followed by
    two years probation, a weapons prohibition for 10 years, a SOIRA order for 20
    years, and a DNA order.

(f)

The applicant appeals and applies for bail
    pending appeal

[17]

The applicant is represented by new counsel
    before this court. His notice of appeal, dated October 16, 2020, asserts that his
    guilty plea was not informed and alleges ineffective assistance of counsel. His
    notice of appeal states the following grounds:

1.
July 08
th
, 2019 Change of election and guilty plea over
    lunch time break; Incompetency of 486 counsel;

2.
The 486 counsel failed to have one judicial pre-trial on behalf of
    the appellant
prior to
, or after changing his
    election.

3. Submission of counsel and Book of
    authorities were
completely
absent material
    for an 18 month sentence. S.486 Counsel was under prepared.

4. S.486 Counsel did not spend time,
    presenting all mitigating circumstances but rushed through submission.

5. Charter defenses were not presented to the
    court or the appellant.
Moreover, it
was not considered
    a mitigating factor by the [sentencing] judge in her reasoning.

[18]

During the oral hearing of this application, applicants
    counsel referred to several documents not filed on the application, some of
    which the Crown had not seen before. The Crown did not object to applicants
    counsel providing these documents to the court after the hearing. I therefore
    allowed them to be filed and both parties filed further written submissions on their
    import.

[19]

I should add that the applicants current counsel
    and Crown counsel have been unable to resolve whether or under what conditions Crown
    counsel should be permitted to speak to the applicants former counsel to
    explore the claim of ineffective assistance of counsel. Applicants current counsel
    also advised that the applicants former counsel obtained the applicants
    instructions in writing for the guilty plea, but a copy of those instructions
    has not been filed because the applicant claims they are privileged and he has been
    unable to agree with the Crown on how to address this issue.

C.

discussion

[20]

To obtain bail pending appeal under s. 679(3) of
    the
Criminal Code
, the applicant must establish that: (1) the appeal
    is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in
    accordance with the terms of the order (s. 679(3)(b)); and (3) his
    detention is not necessary in the public interest (s. 679(3)(c)).

[21]

Parliament saw fit to place the onus on the
    applicant for bail pending appeal because the applicant has now been convicted
    and sentenced, and therefore no longer benefits from the presumption of
    innocence:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 35.

[22]

I will address each of these three elements
    below.

(1)

Has the applicant established the appeal is not
    frivolous?

[23]

The first element requires the applicant to
    establish that the grounds of appeal are not frivolous. This is a very low
    bar:
Oland
, at para. 20. The applicant must establish that the proposed
    grounds of appeal raise arguable issues. An applicant need not establish a
    likelihood, much less a certainty of success on appeal, but must be able to
    point to a viable ground of appeal that would warrant appellate intervention if
    established:
R. v. Manasseri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at
    para. 38.

[24]

The purpose of the not frivolous threshold is
    to require the applicant to demonstrate that the appeal has some merit. If
    this were not so, the appellate process could be abused by those intent on
    forestalling the execution of a custodial sentence: Justice Gary T. Trotter,
The
    Law of Bail in Canada
, loose-leaf, 3rd. ed. (Toronto: Thomson Reuters,
    2017), at pp. 10-13 (footnote omitted).

[25]

The Crown contends the applicant has not
    established any arguable grounds of appeal. As I explain below, based on the
    material before me, I agree.

[26]

I will first deal with the applicants claim
    that his guilty plea was not informed, and then address his claim of ineffective
    assistance of counsel.

(i)

Is it arguable the guilty plea was not
    informed?

[27]

In his affidavit on this application, the applicant
    alleges that his guilty plea was not informed because he and his counsel did
    not discuss SOIRA or how long I could be designated a sexual offender. He also
    claims he was not aware of what the maximum penalty was for each offence for
    which he pleaded guilty.

[28]

To be valid, a guilty plea must be voluntary,
    unequivocal, and informed. To be informed, the accused must be aware of the
    nature of the allegations made against him, the effect of his plea, and the
    consequence of his plea:
R. v. Wong
, 2018 SCC 25, [2018] 1 S.C.R.
    696, at para. 3, citing
R. v. T.(R)
(1992), 10 O.R. (3d) 514 (C.A.),
    at p. 519. The consequences of the plea include the criminal consequences and the
    legally relevant collateral consequences:
Wong
, at para. 4.

[29]

An accused seeking to withdraw their guilty plea
    because they were unaware of criminal consequences at the time of the plea must
    demonstrate prejudice by filing an affidavit establishing a reasonable
    possibility that [they] would have either (1) pleaded differently, or (2)
    pleaded guilty, but with different conditions:
Wong
, at para. 19. An
    accused need not show a viable defence to the charge in order to withdraw a
    plea on procedural grounds:
Wong
, at para. 23.

[30]

The applicants affidavit on this application focuses
    mainly on the alleged ineffective assistance of counsel. As the Supreme Court
    of Canada cautioned in
Wong
, however, the ineffective assistance of
    counsel framework is not relevant to whether a guilty plea is informed. The
    ineffective assistance of counsel framework focuses on the
source
of
    the misinformation (or incomplete information) rather than the misinformation
    itself. Assessing whether prejudice arises from misinformation does not depend
    upon its source:
Wong
, at para. 24 (emphasis in original); see also
    para. 60,
per
Wagner J. (as he then was) (dissenting, but not on this
    point). I will therefore focus on the misinformation the applicant alleges.

[31]

As noted, the specific misinformation the
    applicant alleges is: (1) he was unaware he would be subject to a SOIRA order
    or for how long; and (2) he did not know the maximum penalty for the offences
    for which he pleaded guilty.

[32]

Neither claim raises an arguable ground of
    appeal.

[33]

The trial judge canvassed the SOIRA issue with
    the applicant at length at the time of his plea:

THE COURT:  One of the other things that will
    flow from these convictions is that
youll have to
register
    on a Sex Offender Registry. Did you know that?

[T.S.D.]: No, I did not.

THE COURT: Okay. So,
you
    should
know that because its an important consequence of the things
    that youre pleading guilty to. Do you want to take some time to speak to your
    counsel about what that means and 

[T.S.D.]: If that is possible, then yes.

THE COURT: Yes.

[T.S.Ds counsel]: So, Your Honour, we had
    discussed it under another name but he is aware. Thank you.

THE COURT: Okay. Alright. So, now youve
    refreshed
your thoughts on
what youve
    discussed before, do you understand what that means?

[T.S.D.]: Yes, maam.

THE COURT: Okay. And therell be, you know,
    reporting requirements
as a result of
that
    which Im sure your counsel has explained to you but you understand how that
    will work?

[T.S.D.]: Yes, maam.

THE COURT: Okay. And then
lastly,
I dont know your personal circumstances so,
    you know, for some people when theyre pleading guilty to offences it might
    have immigration consequences, for example. It might not apply to you if youre
    a citizen but it could have other consequences related to
being able to work
in certain fields,
being able to travel
, things like that. Have you
    thought about those
kinds of
consequences
    other than the fact that theres going to be entries on your record or give you
    a record if you dont have one?

[T.S.D.]: Yes, maam.

THE COURT: Okay. And, if having thought about
    all those other potential consequences and the registering on the Sex Offender
    Registry, are you still prepared to go forward with your plea?

[T.S.D.]: Yes, maam.

[34]

I accept that this exchange did not mention the SOIRA
    order being for 20 years, but neither did it misinform the applicant about its duration.
    Instead, the applicant acknowledged to the court he understood how the reporting
    requirements of the sex offender registry worked and that he had discussed this
    issue with his counsel.

[35]

Even though I must assess the applicants
    awareness of the criminal consequences of his conviction at the time of his
    guilty plea on July 8, 2019, I am fortified in my conclusion that there is no
    arguable ground of appeal by what was said during sentencing submissions on March
    3, 2020. Crown counsel stated: Given that the Crown has proceeded by
    indictment, a SOIRA order is also mandatory for 20 years. The applicants counsel
    then reiterated this: we also need to take into account the other consequences
    of this conviction; a criminal record and a lengthy SOIRA order. The sentence was
    not imposed until September 22, 2020  seven months later. Yet there is no
    evidence that between the sentencing submissions and when the sentence was
    imposed the applicant expressed any concern about the SOIRA order. To the
    contrary, at the close of the sentencing submissions, the applicant apologized
    and expressed remorse for the offence.

[36]

The applicant has thus not raised an arguable
    issue of misinformation or incomplete information. Nor has he expressly stated that
    absent any such misinformation or incomplete information he would have pleaded
    differently or insisted on different conditions.

[37]

I reach the same conclusion about the
    applicants claim that his guilty plea was not informed because he allegedly did
    not understand his maximum sentence exposure. When he pleaded guilty, the applicant
    acknowledged he understood the sentence to be sought by the Crown, and that, as
    Maxwell J. explained to him, [i]t could go higher than what the Crown is
    asking for.

[38]

The applicant has therefore not raised an
    arguable issue that his guilty plea was not informed.

(ii)

Is it arguable there was ineffective
    assistance of counsel?

[39]

The applicants second principal ground of
    appeal alleges ineffective assistance of counsel. He says that he did not
    receive competent legal advice about whether to plead guilty.

[40]

The legal principles governing a claim of
    ineffective assistance of counsel were recently summarized in
R. v.
    Hartling
, 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 72-74:

An ineffective assistance of counsel claim has
    two components: performance and prejudice. The appellant must show that (i)
    trial counsels acts or omissions amounted to incompetence, and (ii) a
    miscarriage of justice occurred:
R. v. Prebtani
, 2008 ONCA 735,
243 O.A.C. 207
, at paras. 3-4.

To establish a claim of ineffective assistance
    of counsel, the appellant must establish:

1. The facts that underpin the claim;

2. That counsels
    representation was inadequate; and,

3. That counsels inadequate representation
    resulted in a miscarriage of justice.

This test presents a high bar
that is
not easily met:
R. v. Cherrington
, 2018
    ONCA 653,
at
    para. 25.
As Watt J.A. explained, once the first
    step of the test is established, the analysis turns to the third step, or the
    prejudice component, of whether there was a miscarriage of justice. If there
    was no prejudice, then it is undesirable for the court to proceed to the
    second step, or the performance component, of the test:
R. v. Girn
, 2019
    ONCA 202,
373
    C.C.C. (3d) 139
, at para. 92
. The analysis
    under the performance component proceeds upon a strong presumption that
    counsels conduct fell within the wide range of reasonable professional
    assistance:
R. v. G.B.D.
, 2000 SCC 22
,
[2000] 1 S.C.R. 520
, at para. 27
. The presumption of competence is tested against a standard of
    reasonableness, and accords no place to hindsight:
Cherrington
, at
    para. 26; see also
G.B.D.
, at para. 27.

[41]

Under the prejudice component, the applicant
    need not establish a viable defence to the charges against him. He need only
    show that, had he received competent legal advice, he would not have pleaded
    guilty:
R. v. Cherrington
, 2018 ONCA 653, at para. 46;
R. v. Quick
,
    2016 ONCA 95, 129 O.R. (3d) 334, at paras. 36-38.

[42]

Here, the applicant raises several complaints in
    his affidavit about counsels representation, but does not expressly state that
    had he received competent legal advice he would not have pleaded guilty. Even
    had the applicant so stated, nothing in the evidence before me at this stage
    raises an arguable issue that counsels competence was inadequate or that it
    caused a miscarriage of justice:

·

The Crown had a formidable case. The applicant was
    recorded on videos sexually assaulting the complainant and distributed the
    videos to others. The complainant herself recalled seeing the applicant through
    the flash of the camera. The videos were found on his phone, which the police seized
    incident to his arrest and then searched only after obtaining a search warrant.

·

The applicants counsels
    dockets reveal that she reviewed the Crown disclosure with the applicant several
    times, met with him to prepare for the preliminary inquiry, and spent time
    preparing to cross-examine witnesses. She reviewed the law on consent, intoxication,
    and voluntariness. She discussed the applicants jeopardy with him at length.
    Her dockets also record his instructions to her to plead guilty on the day of
    his plea. She then prepared for sentencing and delivered what
, in my view,
was an effective sentencing submission.

·

By negotiating a plea
    before the preliminary inquiry began, the complainant did not have to testify,
    which even the Crown acknowledged was incredibly mitigating for the applicant.
    The applicant was then sentenced to 18 months imprisonment, which was below
    the sentence sought by the Crown and at the low point of the range mentioned to
    him at the time of his plea.

[43]

I thus conclude that the applicants claim of
    ineffective assistance of counsel, like his claim of an uniformed guilty plea,
    does not raise an arguable ground of appeal. These two conclusions provide a
    sufficient basis for me to dismiss this application. Even so, I will consider
    the two other branches of the test for bail pending appeal.

(2)

Has the applicant established he will surrender
    himself into custody
in accordance with
the
    terms of any release order?

[44]

I am satisfied the applicant has established
    that he would surrender himself into custody in accordance with the terms of
    any release order. The Crown accepts that the applicant was on bail pre-sentence
    without incident. Under the applicants release plan, he proposes to live with
    his parents under their supervision. He also proposes to wear an ankle monitor.
    On this basis, I conclude that the applicant meets the second criterion for
    bail pending appeal.

(3)

Has the applicant established his detention is
not necessary
in the public interest?

[45]

The Crown also opposes bail on the third criterion
    for bail pending appeal, the public interest criterion under s. 679(3)(c). The Crown
    submits that the applicant has failed to establish that his detention is not
    necessary in the public interest.

[46]

The public interest criterion under s.
    679(3)(c) has two elements: public safety and public confidence in the
    administration of justice:
Oland
, at paras. 23, 26.

(a)

Public safety

[47]

Public safety considerations under s. 679(3)(c)
    relate to the protection and safety of the public, which tracks the secondary
    ground requirements of s. 515(10)(b) governing an accuseds release
    pending trial:
Oland
, at para. 24. To be denied bail for public safety
    considerations: (i) an individual must pose a substantial likelihood of
    committing an offence or interfering with the administration of justice; (ii)
    the substantial likelihood must endanger the protection or safety of the
    public; and (iii) the individuals detention must be 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.

[48]

Public safety considerations alone can justify
    refusing bail in the public interest. And even when an applicant meets the
    public safety threshold, residual public safety concerns or the lack of any
    public safety concerns should still be considered as part of the public
    confidence analysis:
Oland
, at para. 27.

[49]

I am satisfied that public safety considerations
    alone do not justify the applicants continued detention. Nor does the Crown
    contend this. The applicant is a first-time offender. There is no evidence of a
    substantial likelihood that he would commit another offence or interfere with
    the administration of justice. However, his offences were serious, so I cannot
    say his release would pose no public safety concerns. In any event, I am satisfied
    that his proposed release plan would address any residual public safety
    concerns.

[50]

I now turn to the public confidence component.

(b)

Public confidence in the administration of
    justice

[51]

The public confidence component involves
    weighing two competing interests: enforceability and reviewability.
    Enforceability concerns the need to respect the general rule of the immediate
    enforceability of all judgments. Reviewability concerns the need to provide for
    a meaningful review process, one that does not require persons convicted of
    offences to serve all or a significant part of their sentence only to have
    their conviction overturned on appeal:
Oland
, at paras. 24-26.

(i)

The enforceability interest

[52]

In assessing the enforceability interest, the
    seriousness of the crime plays an important role. The more serious the crime,
    the greater the risk that public confidence in the administration of justice
    will be undermined if the person convicted is released on bail pending appeal:
Oland
,
    at para. 37. The absence of flight or public safety risks will attenuate the
    enforceability interest. Other factors should also be considered where
    appropriate:
Oland
, at para. 39.

[53]

Here, I find the enforceability interest is
    significant. The applicant was convicted of two serious sexual offences. He sexually
    assaulted the complainant when she was incapacitated and vulnerable. He
    assaulted her in her home, a place where she should have felt safe. He used an implement
    to violate her in a way that was especially degrading and humiliating. He did so
    with others, recorded the encounter, and then circulated it to a group. He revealed
    a callous demeanour during the assault, laughing and smiling as he continued. All
    this has had a lasting impact on the complainant, as she revealed in her victim
    impact statement. The applicant disputes none of these essential facts.

[54]

The enforceability interest is, however, attenuated
somewhat by the lack of flight risk and the
    substantially reduced public safety risk that I have mentioned.

[55]

I now turn to consider the reviewability
    interest.

(ii)

The reviewability interest

[56]

In assessing the reviewability interest, the
    strength of the appeal plays a central role:
Oland
, at para. 40. A
    preliminary assessment of the strength of the appeal is made by reviewing the
    grounds in the notice of appeal for their general legal plausibility and
    foundation in the record, to determine whether those grounds clearly surpass
    the not frivolous criterion:
Oland
, at para. 44. A broader public
    interest in reviewability transcends an individuals interest in any given case:
Oland
, at para. 45.

[57]

Here, the reviewability interest is weak. Even
    if I am wrong in my earlier conclusion that the grounds of appeal are not
    arguable, they do not clearly surpass the not frivolous criterion.

(iii)

Balancing the public interest in
    enforceability and reviewability

[58]

In conducting a final balancing of the
    enforceability and reviewability interests, public confidence in the
    administration of justice is measured through the eyes of a reasonable member
    of the public, someone who is thoughtful, dispassionate, informed of the
    circumstances of the case and respectful of societys fundamental values:
Oland
,
    at para. 47. Anticipated delay in deciding an appeal, relative to the length of
    the sentence, is also a consideration, to ensure that the reviewability
    interest remains meaningful:
Oland
, at para. 48.

[59]

The COVID-19 pandemic is also a factor that may be
    considered as part of the public interest criterion, though the weight to be
    given to it depends on the particular circumstances of each case: see e.g.,
R.
    v. Kazman
, 2020 ONCA 251, 386 C.C.C. (3d) 424, at paras. 17-21;
R. v.
    Omitiran
, 2020 ONCA 261, at para. 26; and
R. v. Jesso
, 2020 ONCA
    280, at para. 36. Here, the applicant is young and in apparently good health.
    This factor was not invoked, and I give it little weight.

[60]

On the record before me, I conclude there is a
    strong public interest in enforceability and only a weak interest in
    reviewability. That tips the scales decisively in favour of the applicants
    continued detention pending appeal.

[61]

I appreciate that the anticipated delay in
    scheduling and deciding the appeal relative to the length of the sentence (18
    months) must be considered to ensure that the applicants reviewability
    interest remains meaningful. I therefore order this appeal to be expedited
    under s. 679(10) of the
Criminal Code
.
The parties may arrange an
expedited
date
    with the courts Appeal Scheduling Unit.

[62]

While this application was under reserve, counsel
    for the applicant emailed the court and sought to rely on new grounds of appeal
    and new evidence on this application. The Crown objected. As noted above, I
    have already permitted the applicant to adduce additional evidence and
    submissions after the oral argument. In the context of this application, I am
    not prepared to do so again.

D.

disposition

[63]

The application for bail pending appeal is
    dismissed. The appeal is expedited under s. 679(10) of the
Criminal Code
.

M.
    Jamal J.A.


