



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. R.C., 2017 ONCA 806

DATE: 20171020

DOCKET: M48306 (C64312)

Feldman J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

R.C.

Appellant (Applicant)

Mark C. Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: October 17, 2017

REASONS FOR DECISION

A.

Introduction

[1]

The appellants application for bail pending appeal is opposed by the
    Crown on the public interest ground.

[2]

The appellant was convicted in January 2017 of four counts: sexual
    assault; sexual interference; incest; and assault, all with respect to his
    biological daughter when she was 13-14 years old, in 2008-2009. The sexual
    assaults included full vaginal intercourse. He was sentenced on October 13,
    2017 to eight years in penitentiary. His appeal is from conviction.

[3]

The appellant was arrested in November 2012 and released on a promise to
    appear. He remained on that release without incident for over 4 years until his
    trial. Following his conviction in January of this year, he was initially
    detained pending obtaining sureties. After a hearing before the trial judge
    where release was opposed by the Crown, the appellant was granted bail pending
    sentencing. He remained on bail until his sentencing last week.

[4]

For the reasons that follow, the application for bail pending appeal is
    granted on the terms contained in the draft order filed.

B.

The Law

[5]

Section 679(3) of the
Criminal Code
sets out the circumstances
    where an appellant may be released and provides that:

(3) In the case of an appeal referred to in paragraph (1)(a) or
    (c), the judge of the court of appeal may order that the appellant be released
    pending the determination of his appeal if the appellant establishes 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.

[6]

The applicant seeking bail pending appeal bears the burden of
    establishing that each criterion is met on a balance of probabilities: see
R.
    v. Oland
, 2017 SCC 17, 409 D.L.R. (4th) 457, at para. 19.

[7]

The public interest under s. 679(3)(c) includes public safety and public
    confidence in the administration of justice: see
Oland
, at paras. 23,
    26; and
R. v. Farinacci
(1993), 67 O.A.C. 197 (C.A.). Public
    confidence involves weighing the two competing interests of enforceability and
    reviewability: see
Oland
, at paras. 24, 26; and
Farinacc
i
,
    at paras. 41, 44. The balancing of enforceability and reviewability is a
    qualitative and contextual exercise, with no precise formula: see
Oland
,
    at para. 49.

C.

The Positions of the Parties

[8]

In this case, the Crown does not oppose bail under ss. 679(3)(a) or (b).
    The Crowns position is that this is one of the cases referred to by the
    Supreme Court in
Oland
, where the public interest in enforceability outweighs
    the reviewability interest because of the seriousness of the offence and the
    length of the sentence imposed: see
Oland
, at para. 50. The Crown
    states that in those circumstances the grounds of appeal should be stronger
    than merely beyond frivolous and that in this case the grounds are weak.

[9]

The appellants position is that it is not in the public interest to
    deny bail in this case. He submits that although the offences are very serious
    and a long sentence was imposed, the grounds of appeal are strong enough to
    pass the
Oland
threshold. As well, the particular offender has been on
    release for almost five years without incident, the first four years and three
    months of which was on a simple promise to appear without sureties, and has
    shown himself to present no issue of public safety.

D.

Analysis

[10]

The
    grounds of appeal in this case relate to the sufficiency of the reasons for
    conviction  in particular the alleged failure of the trial judge to grapple
    with inconsistencies in the complainants evidence, compared with a focus on
    minor problems with the appellants evidence.

[11]

In
    my view, the appellant has met his onus in this case. The reasons of the trial
    judge are apparently incomplete. They were given orally, and the trial judge
    indicated that he would be adding transcript references to illustrate his
    areas of concern regarding the appellants evidence and his conclusion that it
    did not raise a reasonable doubt. However, he has not yet added those
    references. The appellant testified and denied all of the sexual allegations.
    The reasons for rejecting his evidence form a critical part of the basis for
    conviction.

[12]

Therefore,
    as the reasons stand, the grounds of appeal raised by the appellant are in my
    view sufficiently strong to meet both the: (i) not frivolous test of s.
    679(3)(a), which, per
Oland
, at para. 20, is a very low bar; and
    (ii) the more pointed assessment required by
Oland
under the
    reviewability part of the confidence component of public interest: see paras.
    44-45.

[13]

As
    noted, the Crown does not oppose bail under s. 679(3)(b). I also give weight to
    the appellants lengthy history of bail compliance as: (i) part of the
    assessment of the public interest with its two components, confidence and
    safety; and (ii) an additional consideration under the balancing of
    enforceability and reviewability: see
Oland
, at paras. 23, 26, 39, 51.

[14]

In
    my view, in the circumstances of this case, the balancing of enforceability and
    reviewability favours granting bail pending appeal.

E.

Conclusion

[15]

The
    application for bail pending appeal is granted on the terms contained in the
    draft order filed. In oral argument, counsel for the appellant agreed that if
    there is any untoward delay in perfecting the appeal, this order may be
    revisited when an extension is sought.

K. Feldman J.A.


