



WARNING

T
he
    motion judge presiding over this hearing 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.M., 2022 ONCA 46

DATE: 20220119

DOCKET:
    M52958 (C70015)

Tulloch J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

T.M.

Appellant/Applicant

Katie Heathcote, agent for counsel for
    the applicant

Craig Harper, for the respondent

Heard: November 24, 2021 by video conference

REASONS
    FOR DECISION

[1]

On April 7, 2021, following a judge-alone trial
    in the Superior Court of Justice, the applicant, T.M., was convicted of
    sexually assaulting his intimate partner and choking her to overcome resistance
    to the offence. He was sentenced to four years imprisonment.

[2]

The applicant now seeks release pending appeal
    on the basis of an alleged misapprehension of evidence, and, more particularly,
    that the trial judge made substantial errors in her assessment of the evidence
    and in her credibility assessment.

[3]

The Crown disagrees and opposes the applicants release
    on the basis that the pending appeal is frivolous, as well as on the tertiary
    ground that it would be contrary to the public interest.

Facts

[4]

At the applicants trial, the court heard
    evidence from the complainant and a police officer. The defence called no
    evidence. The Crown and defence agreed that if the trial judge accepted the
    Crowns evidence, then the offences would have been made out.

[5]

The underlying facts as found by the trial judge
    and on which the convictions are based are as follows. The complainant and the applicant
    were involved in a domestic intimate relationship from sometime in 2014 or 2015
    to August 2016. On July 5, 2016, the complainants father passed away, and the
    funeral was held on July 7, 2016. On July 9, 2016, two days after the
    complainants fathers funeral, she was in her bedroom resting when the applicant
    entered the bedroom and told her that he wanted her to be more of a girlfriend
    to him and more attentive. The complainant indicated to the applicant that she
    wanted to be left alone, but the applicant would not take no for an answer.

[6]

The applicant tried to take off the
    complainants yoga pants and a black spaghetti-strap shirt. He forced her legs open
    and pushed himself on top of her. Her pants were ripped in the struggle. The
    complainant was crying and said please dont do this to me. The applicant had
    his hand around her neck and pinned her down, so she was not able to breathe. She
    testified that she felt absolutely defeated.

[7]

The applicant penetrated the complainant
    vaginally. He was not satisfied and told her to turn around. She said no. The applicant,
    in response to her refusal, punched her in the side of her body and forced her to
    turn around by her hair. This caused the left side of her face to hit the wall.
    He tried to bite the complainants face but bit her hand instead. He then
    forced anal sex on her. She stated that it hurt, and she did not know how long
    this lasted. The complainant had sore ribs but did not receive medical attention.

[8]

The applicant did not testify.

The Applicants Criminal Antecedents

[9]

The applicant has a long criminal record, dating
    back to 1985, as well as a history of violence against domestic partners. The offences
    for which he has been previously convicted include offences of violence, such
    as assaults, assault causing bodily harm, crimes of dishonesty (theft and
    public mischief), participation in a criminal organization, illegal transfer of
    a firearm, possession of proceeds obtained by crime, failure to comply with
    court orders while on release (four convictions), and failure to comply with
    probation.

[10]

Of particular relevance to this application for
    release pending appeal, are the applicants previous convictions for very
    serious assaults against intimate partners. There are two sets of such convictions,
    all of which involved different intimate partners and different time frames.

[11]

The first convictions against an intimate
    partner involves a set of offences committed between 2002 and 2010, which
    resulted in convictions in 2013 for assault, aggravated assault, assault with a
    weapon, and uttering threats. The underlying facts for this first series of
    offences involved the applicant striking the complainant with a piece of wood
    which caused the complainants arm to be fractured. He was also convicted of
    choking the complainant, and of grabbing and throwing her on the bed. This
    series of offences resulted in ongoing physical difficulties to the complainant.

[12]

The second set of offences involving an intimate
    partner resulted in the applicant being convicted of assault causing bodily
    harm on October 16, 2018. On February 25, 2018, the complainant returned home
    from church to find the applicant in her residence. They engaged in a verbal
    argument. Without warning, the applicant punched the complainant directly in
    the face, knocking her unconscious. She regained consciousness as he dragged
    her across the kitchen floor by her ankles. The applicant proceeded to choke
    her with his hands around her neck, and then placed her in a bear hug from the
    front, making it extremely difficulty for her to breathe. He pushed her up
    against the kitchen cupboards, causing her to strike the back of her head on
    the cupboard handle. He then began choking her around her neck again.
    Throughout the assault, he made threatening comments to her, and she lost
    consciousness at least one time. This offence occurred while the applicant was
    on bail pending trial for the instant offences. His sister was his surety at
    that time. The applicant pled guilty.

Proposed Sureties

[13]

In this application for release pending appeal,
    the applicant has submitted a proposed plan of release, in which he proposes as
    sureties his sister as well as his new wife, who he has been married to since
    June 13, 2021. None of the affidavits of the proposed sureties for this
    application referenced the applicants criminal record or addressed his past breaches
    of court orders. They did not address what would be different this time around,
    after the applicant has been convicted for yet another series of offences
    involving another intimate partner.

Analysis

[14]

An application for release pending appeal is governed
    by s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46. The applicant
    must satisfy the court 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.

[15]

The applicant bears the burden of meeting each criterion
    on a balance of probabilities. As the applicant has now been convicted, he no
    longer benefits from the presumption of innocence:
R. v. Oland
, 2017
    SCC 17, [2017] 1 S.C.R. 250, at para. 35.

Section 679 (3)(a): The Appeal is Not Frivolous

[16]

The not frivolous test is a very low bar:
Oland
,
    at para. 20. It is not, however, non-existent. The applicant must provide an
    outline of his argument supported by legal authority and a factual underpinning
    so that the court can determine whether the applicant has met the burden under s.
    679(3)(a). In essence, the applicant must show the proposed appeal raises
    arguable issues:
R. v. Manasseri
, 2013 ONCA 647, 312 C.C.C.
    (3d) 132, at para. 38. If a judge is unable to determine on the record before the
    court if the onus has been met, the applicant has not established his or her onus
    of proof that the appeal is not frivolous.

[17]

The applicant submits that the trial judge
    misapprehended the evidence, and as such, the appeal is arguable. I disagree. A
    close examination of the applicants proposed ground of appeal within the
    context of the evidentiary narrative leads to the conclusion that there is no
    merit to this ground of appeal. The legal test for a misapprehension of
    evidence was succinctly stated by this court in the case of
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541:

Where a trial judge is mistaken as to the
    substance of material parts of the evidence and those errors play an essential
    part in the reasoning process resulting in a conviction then, in my view, the
    accuseds conviction is not based exclusively on the evidence and is not a
    true verdict If an appellant can demonstrate that the conviction depends on
    a misapprehension of the evidence then, in my view, it must follow that the
    appellant has not received a fair trial, and was the victim of a miscarriage of
    justice. This is so even if the evidence, as actually adduced at trial, was
    capable of supporting a conviction.

[18]

The Supreme Court of Canada in the case of
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, clarified the
    test for misapprehension of evidence as enunciated in
Morrissey
:

Morrissey
, it
    should be emphasized, describes a stringent standard. The misapprehension of
    the evidence must go to the substance rather than to the detail. It must be
    material rather than peripheral to the reasoning of the trial judge. Once those
    hurdles are surmounted, there is the further hurdle (the test is expressed as
    conjunctive rather than disjunctive) that the errors thus identified must play
    an essential part not just in the narrative of the judgment but in the
    reasoning process resulting in a conviction.

[19]

The basis of the applicants argument is in an
    affidavit by a lawyer, Arden Ross, who asserts that he reviewed the trial notes
    of the applicants trial counsel as they pertain to the complainants evidence.
    From that review, he concludes that the complainants evidence is irreconcilable,
    as the complainant gave evidence indicating that the applicant remained
    inside of her while he punched her side and grabbed her by the hair, forcing
    her to turn over onto her stomach during the described sexual assault.

[20]

The trial judge dealt directly with this
    submission and the concerns raised by the defence. She considered the totality
    of the evidence, and she addressed the concerns and perceived inconsistencies:

The defence in submissions takes issue with
    the chronology of these events and questions whether all of those things she
    described could be happening at once, such as the forced vaginal intercourse;
    the hand around her throat, the punch to her side, the attempt to bite her
    face. The difficulty with this submission is that this was not put to the
    witness. She maintained in her evidence that all of these events took place and
    some inconsistency in her evidence as to whether the accused was standing or on
    the bed with her when he was forcing anal intercourse, and whether her top was
    ripped off or just ripped does not detract from her evidence overall.

Her evidence in relation to the incidents of
    July 9th, 2016, is detailed and straightforward, and any minor inconsistencies do
    not concern any material issues.

[21]

In my view, this is a complete answer to the
    applicants ground of appeal based on a misapprehension of the evidence. It is
    clear from the above excerpt that the trial judge understood the concerns
    raised by the defence, she turned her mind to the complainants evidence on the
    issue in concern, and she addressed the fact that the complainant was not
    cross-examined on the perceived inconsistencies with this portion of the
    evidence. It is clear that the trial judge considered the defence arguments in
    her weighing and assessment of the credibility and reliability of complainants
    evidence, and in the end, she was satisfied beyond a reasonable doubt that the Crown
    had discharged its burden of proof.

[22]

In my view, the applicants proposed ground of
    appeal does not go to the substance of the evidence. The sole issue at trial
    was the credibility and reliability of the complainants evidence. The
    complainant was the only witness who testified on the issues pertaining to the
    elements of sexual assault that the Crown was required to prove. The applicant chose
    not to call any evidence, which was his right. Unfortunately for him, the only
    credible evidence which the trial judge was left with to determine the guilt or
    innocence of the applicant was the unimpeached evidence of the complainant.

[23]

The proposed ground of appeal which the applicant
    has couched under the rubric of a misapprehension of the evidence goes to the
    detail rather than the substance of the evidence and was clearly not material,
    but rather peripheral, to the reasoning of the trial judge. The trial judge
    gave very clear and detailed reasons why she accepted the evidence of the
    complainant, and why she was not left with any reasonable doubt by the
    arguments of the defence. In my view, the very low test of not frivolous has
    not been met by the applicant in this case.

Section 679(3)(c): Detention is Not Necessary
    in the Public Interest

[24]

Furthermore, even if the ground of appeal were
    arguable, I find that pursuant to s. 679(3)(c), the applicant has not
    discharged his onus of establishing that his detention pending his appeal is
    not warranted in the publics interest.

[25]

An assessment of the public interest requires an
    assessment of public safety and public confidence in the administration of
    justice.

[26]

Public safety involves an assessment of the
    secondary ground concerns governing pre-trial release under s. 515(10)(b). As
    explained in
R. v. Stojanovski
, 2020 ONCA 285, at para. 18, bail will
    be denied if the following conditions are met: (i) the 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.
    A history of breaching court orders is an important factor in gauging how an
    applicant will perform on bail:
R. v. L.D
., 2021 ONCA 786.

[27]

Public safety concerns, standing alone, can
    justify refusing bail in the public interest. As pointed out earlier, the
    applicant has a significant criminal record for violence and for breaching
    court orders. In addition, he now has two sets of convictions for intimate
    partner violence, one of which was committed while on bail and awaiting trial
    for the instant charges. By virtue of the applicants criminal antecedents,
    there is a clear indication that the applicant poses a substantial likelihood
    of committing a subsequent offence, which could endanger the protection or
    safety of the public. As such, I am satisfied that the applicants detention is
    necessary for public safety.

[28]

The second category, public confidence, requires
    an assessment and balancing of the competing interests of enforceability and
    reviewability. The interest of enforceability is assessed with a view to the
    seriousness of the crime: the more serious the crime, the greater the risk that
    the publics confidence in the administration of justice will be undermined if
    the person convicted is released on bail pending appeal:
R. v. T.S.D.
,
    2020 ONCA 773, at para. 52;
Oland
, at para. 37. The reviewability
    interest considers the strength of the appeal, having regard to the general
    legal plausibility and evidentiary support for the proposed grounds of the
    appeal:
T.S.D.
, at para. 56;
Oland
, at paras. 40 and 44.

[29]

In my view, the enforceability interest is
    significant in this case and overrides the reviewability interest. The
    applicant was convicted of a very serious and violent sexual assault against
    his intimate partner. He also has a history of intimate partner violence and of
    breaching court orders.

[30]

I acknowledge that, more likely than not, the
    appeal will be heard before the applicant has served his sentence, and as such,
    the interest of reviewability militates in favour of release pending appeal.
    However, as I explained earlier in these reasons, in my view there is no
    prospect of success on this appeal, as the proposed ground of appeal lacks
    merit.

[31]

Accordingly, the public interest in maintaining
    confidence in the administration of justice militates in favour of enforceability
    in this case.

Disposition

[32]

For these reasons, the application for release
    pending appeal is dismissed.

M.
    Tulloch J.A.


