



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groskopf, 2018 ONCA 455

DATE: 20180514

DOCKET: M49012 (C65181)

Brown J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Brenden Groskopf

Appellant (Applicant)

Dano Sahulka and Efstathios Balopoulos, for the applicant

Susan Magotiaux, for
    the respondent

Heard: April 30, 2018

REASONS FOR DECISION

OVERVIEW

[1]

The applicant, Brenden Groskopf, was convicted of the possession, making,
    and distribution of child pornography, together with sexual interference, sexual
    assault, and sexual exploitation. The trial judge found the applicant had taken
    and distributed photographs showing his young daughter naked. The applicant was
    sentenced to four years imprisonment. The applicant has appealed his
    conviction.

[2]

The applicant applies for release from custody pending the determination
    of his appeal from conviction pursuant to s. 679 of the
Criminal Code
.

[3]

The Crown opposes the application. The Crown takes the position the
    detention of the applicant is necessary in the public interest because he was
    convicted of serious offences and his grounds of appeal are weak.

ANALYSIS

[4]

The public interest criterion in s. 679(3)(c) of the
Criminal
    Code
consists of two components: public safety and public confidence
    in the administration of justice:
R v. Oland
, 2017 SCC 17,
[2017] 1 S.C.R. 250,
at paras. 23 & 26. The
    public confidence criterion requires balancing several factors: the seriousness
    of the offence; the strength of the grounds of appeal; public safety; and
    flight risks:
Oland
, at paras. 37-40.

[5]

In the present case, I am satisfied that the applicants release would
    not jeopardize public safety and that he is not a flight risk. He complied
    without incident with the terms of his bail pending his trial and sentencing.
    The applicant filed detailed evidence from his proposed sureties about how they
    plan to supervise him should he be released pending his appeal.

[6]

As to the seriousness of the offence, the applicant was convicted of the
    possession, making, and distribution of child pornography, and related sexual
    offences. The
Oland
framework for considering applications for bail
    pending appeal assumes the appeal judge will generally have the benefit of the
    trial judges reasons for sentence in which the factors going to the
    seriousness of the crime will have been addressed: at para. 38. However, the
    applicant did not file a transcript or synopsis of the sentencing reasons.
    Accordingly, I will proceed on the basis the appellant was convicted of very
    serious offences, as reflected by the lengthy sentence he received.

[7]

Turning to the strength of the applicants grounds of appeal,
Oland
calls on the appeal judge to examine the grounds identified in the notice of
    appeal with an eye to their general legal plausibility and their foundation in
    the record: at para. 44.

[8]

In his reasons, the trial judge instructed himself on the principles
    concerning the use of circumstantial evidence
(R. v. Villaroman,
2016
    SCC 33, [2016] 1 S.C.R. 1000). The applicants grounds of appeal concern, in
    part, how the judge applied those principles to the evidence. The applicant
    contends the trial judges assessment of the evidence unduly focused on his
    statements to the police and testimony, while failing to consider properly
    evidence that could point to some other person committing the offence.

[9]

That the trial judge spent some time assessing the applicants evidence
    is not surprising given that the evidence at trial, according to counsel, was
    limited to the testimony of three police officers about their investigation
    into the photographs, as well as the statements and testimony of the applicant.

[10]

Nevertheless,
    in his detailed reasons the trial judge dealt with other plausible theories
    concerning who made and distributed the photographs. His consideration involved
    an assessment of all the evidence, not just that of the applicant.

[11]

The
    applicant also appeals on the ground that the trial judge improperly shifted
    the onus of proof onto him. The trial judge did not clearly self-instruct in
    accordance with
R. v. W.(D.),
[1991] 1 S.C.R. 742, although that does
    not constitute an error. However, an aspect of his reasons points towards
    reviewability. The trial judge structured his reasons to focus mainly on the
    Crowns cross-examination of the applicant. He concluded his analysis by
    stating that there are no other reasonable, alternative inferences that either
    support the
innocence of the accused
,

or more importantly, raise a reasonable doubt (emphasis added). That
    comment, coupled with the lack of a clear
W.(D.)
-based framework in
    his reasons, persuades me that, on the limited record on this application, the
    applicants grounds of appeal pass the more pointed assessment required by
Oland
:
    see para. 44.

[12]

The
    offences of which the applicant was convicted are very serious, involving as
    they do a vulnerable young child. However, when that factor is weighed with the
    remaining factors under the
Oland
public interest test  the strength
    of the grounds of appeal, no flight risk, and no threat to public safety  on
    balance, reviewability is favoured over enforceability.

[13]

In
    my view, this case falls within the circumstances contemplated in
Oland
,
    at para. 51:

[W]here public safety or flight concerns are negligible, and
    where the grounds of appeal clearly surpass the not frivolous criterion, the
    public interest in reviewability may well overshadow the enforceability
    interest, even in the case of murder or other very serious offences.

DISPOSITION

[14]

The
    application is granted, on the terms contained in the draft order, as agreed
    upon by counsel, subject to the following two changes. Condition 21 shall
    require the applicant to perfect his appeal no later than September 4, 2018;
    the surrender date in Condition 1 shall be December 21, 2018. I have placed my
    fiat on the amended draft order.

David Brown J.A.


